Pursuant to Ind. Appellate Rule 65(D),

                                                      FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                    Aug 14 2012, 8:52 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.                                                      CLERK
                                                         of the supreme court,
                                                         court of appeals and
                                                                tax court




ATTORNEYS FOR APPELLANTS:                   ATTORNEYS FOR APPELLEES:

C. DENNIS WEGNER                            EDWARD F. SCHRAGER
C. Dennis Wegner & Associates, P.C.         M. EDWARD KRAUSE, III
Indianapolis, Indiana                       Cohen Garelick & Glazier
                                            Indianapolis, Indiana

JONATHAN E. PALMER
Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

C. DENNIS WEGNER & C. DENNIS WEGNER         )
& ASSOCIATES, PROFESSIONAL                  )
CORPORATION,                                )
                                            )
       Appellants/Cross Appellees,          )
                                            )
              vs.                           )    No. 49A02-1112-CT-1159
                                            )
MICHAEL S. MILLER, D.O., and COHEN          )
GARELICK & GLAZIER,                         )
                                            )
       Appellees/Cross Appellants.          )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Michael D. Keele, Judge
                           Cause No. 49D07-0806-CT-24891
                                          August 14, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Senior Judge


                                 STATEMENT OF THE CASE

       C. Dennis Wegner and C. Dennis Wegner & Associates, Professional Corporation

(collectively, “Wegner”) appeal the trial court’s denial of their motion to correct error and

the award of attorney fees as sanctions to the law firm of Cohen, Garelick & Glazier

(collectively, “Cohen”) and to Michael Miller, D.O. Miller and Cohen, through attorney

Edward F. Schrager (“Schrager”) cross appeals.1

       We affirm in part and reverse in part.

                                              ISSUES

       1.      Whether the trial court erred in awarding attorney fees to Schrager
               after he filed a motion for protective order in which he stipulated
               that he would not request attorney fees unless the order was violated.

       2.      Whether the trial court erred in denying Wegner’s request for
               attorney fees.

       3.      Whether the trial court erred in failing to find that an award of
               additional attorney fees to Schrager was warranted on the theory that
               Wegner engaged in a pattern of discovery abuse.

       4.      Whether the trial court erred in not making findings of fact and
               conclusions of law on the issue of spoliation.

1
 Schrager is the Cohen attorney who represented Miller and made the claims of discovery violations that
are at issue here. For the sake of grammatical economy, we will refer to the discovery motions as
Schrager’s motions. In addition, we will refer to the attorney fee award as an award to Schrager.
                                                  2
                                         FACTS

       On June 5, 2008, Amanda Russell, who was represented by Wegner, filed a tort

action against Miller, who was represented by Schrager. Schrager filed a number of

motions pertaining to discovery issues, and in some of the motions he requested

sanctions. On February 3, 2010, Schrager filed a motion to compel discovery in which he

sought an order compelling Russell to fully answer an Interrogatory question. The trial

court issued a March 5, 2010 order stating that Russell “shall respond to [the

interrogatory], fully and completely within 30 days or be subject to sanction, including

dismissal.” (Appellants’ App. 43).

       On December 23, 2010, Schrager filed a motion requesting a protective order. In

the motion, filed pursuant to Indiana Trial Rules 26(C) and (F), Schrager advised the

court that Wegner had forced the postponement of Russell’s deposition by engaging in

delaying tactics. On January 18, 2011, the trial court issued a protective order requiring

that the deposition be completed in accordance with strict adherence to a number of

court-imposed rules.    The deposition was subsequently conducted without further

incident.

       On January 20, 2011, Schrager filed an “Emergency Motion for Protective Order

and Motion for Attorney Fees.” In this motion, Schrager, on behalf of Miller’s spouse,

Janet, requested that the trial court prohibit Wegner from taking Janet Miller’s deposition

                                            3
as a “fishing expedition” about confidential matters.                    (Appellees’ App. 142). After a

telephonic conference with the trial court, the parties agreed that Janet Miller would

provide an affidavit in lieu of submitting to a deposition.

           Further, on January 21, 2011, Schrager filed a “Motion Requiring that Amanda

Russell Execute HIPAA Authorization Form to Obtain INSPECT Report” in which he

alleged that he had sent a HIPAA Complaint Authorization Form to Wegner on January

12, 2011, requesting that “Russell sign it for the purpose of obtaining an INSPECT

Report.”2 (Appellants’ App. 91). In a January 28, 2011 order dealing with a number of

discovery matters, the trial court ordered that “Russell’s executed HIPAA Compliant

Authorization Form shall be provided forthwith[.]” (Appellees’ App. 211).

           On January 21, 2011, Schrager also filed a “Motion to Compel Discovery of Dr.

Gonso’s Records, Reports, File and all Communication” in which he alleged that Wegner

was withholding from discovery a preliminary version of a report prepared by Dr. Jonni

Gonso, an expert witness designated by Russell.                          In a February 15, 2011 order

compelling discovery, the trial court ordered that Dr. Gonso “shall provide to [Schrager]

all written communication including drafts of Dr. Gonso’s report from the office of

[Wegner] to the office of Dr. Gonso.” [Appellee’s App. 295]. The trial court also

ordered that any delay could result in limited depositions to be paid for by Russell and or




2
    “INSPECT” stands for “Indiana Scheduled Prescription Electronic Collection & Tracking.” Appellee’s Br. at 184.
                                                         4
Wegner. The trial court ordered that “the issue of attorney fees relating to [Schrager’s

motion] shall be considered by the trial court . . . .” [Appellee’s App. 296].

       On January 21, 2011, Schrager had also filed a “Motion For Sanctions And For

Attorney Fees.” In the motion, Schrager stated that Wegner had engaged in further

discovery misconduct in relation to Dr. Gonso. Wegner denied the allegations in his

reply to the motion, and on March 7, 2011, Schrager filed his “Defendant’s Reply to

Plaintiff’s Answer to Defendant’s Motion For Sanctions.” (Appellants’ App. 195). In

the reply, Schrager stated:

       Matters involving Dr. Gonso constitute the most serious of the discovery
       violations. It is with regret that the undersigned is compelled to report that
       [Wegner] engaged in an apparent intentional act of spoliation evidence. On
       November 9, 2010, [Wegner] objected to the release of Dr. Gonso’s draft
       report citing his work product privilege. At that precise moment when he
       asserted the work privilege, [Wegner] had actual knowledge, and indeed
       possession, of the draft report. He was told on the record by [Schrager]
       that this document was sought. On February 15, 2011, [Wegner]
       acknowledged [Schrager]’s right to see the report but claimed it was no
       longer in existence. From before November 9, 2010, through the
       completion of Dr. Gonso’s deposition on February 23, 2011, [Wegner] was
       under a duty to seasonably supplement discovery which would have
       included, but not been limited to, the production without request of Dr.
       Gonso’s final report. This conduct resulted in a substantial diversion from
       the matters at issue in this case and imposed significant attorney’s fees on
       Miller spent to identify and obtain communication between the officer of
       [Wegner] and Dr. Gonso together with her final report.

(Appellants’ App. at 199-200) (emphasis in original).




                                             5
       On March 10, 2011, Russell and Miller engaged in mediation and settled the case.

The “Release Agreement” entered into pursuant to mediation preserved the issue of

sanctions for subsequent determination.

       On April 7, 2011, June 10, 2011, and August 5, 2011, the trial court held hearings

on Schrager’s motion for sanctions and attorney fees. On October 3, 2011, the trial court

entered findings of fact and conclusions of law in support of its order awarding

Schrager’s firm $10,000 in attorney fees for work done in obtaining the protective order

regarding Russell’s deposition and for the time spent presenting this issue at the sanctions

hearings. The trial court also found the award of attorney fees for time expended in the

filing and presentation of the four remaining discovery motions was not warranted.

       On November 2, 2011, Wegner filed a motion to correct error in which he alleged

that Schrager was barred from an award of attorney fees for obtaining the protective order

because Schrager’s motion for protective order specifically stated that Miller was not

seeking attorney fees at that time but reserved the right to do so if there was a further

violation of the protective order.    Wegner emphasized that although the trial court

acknowledged that there was no violation of the protective order, it awarded the attorney

fee award that Schrager promised not to pursue. Wegner further emphasized that the

$10,000 attorney fee award was not supported by the evidence. The trial court denied the

motion to correct error.




                                             6
       In an additional November 2, 2011 motion, Wegner requested an award of

attorney fees on the basis that Schrager failed to make appropriate efforts to resolve

discovery disputes before filing motions with the court. Wegner emphasized the trial

court’s findings that delineated the trial court’s refusal to award attorney fees to Schrager

on four of his five motions. Wegner requested a hearing on the question of attorney fees.

The trial court denied Wegner’s motion without a hearing.

                                        DECISION

       Indiana Trial Rule 52(A) provides that when the trial court issues findings and a

corresponding judgment, “the court on appeal shall not set aside the findings or judgment

unless clearly erroneous, and due regard shall be given to the opportunity of the trial

court to judge the credibility of witnesses.” Factual findings are clearly erroneous if there

is no evidence or reasonable inference from the evidence to support the findings, and we

review only the evidence and reasonable inferences therefrom that are favorable to the

judgment without reweighing the evidence or reassessing the credibility of the witnesses.

Argonaut Ins. Co. v. Jones, 953 N.E.2d 608, 614 (Ind. Ct. App. 2011), trans. denied.

“We owe no deference to the trial court, however, on matters of law, reviewing these de

novo.” Id.

1.     Propriety of Attorney Fee Award to Schrager

       In Schrager’s December 23, 2010 motion for a protective error pertaining to the

completion of Russell’s deposition, he stated the following:

                                             7
        Although it is within the sound discretion of the Court to award fees for the
       necessity of obtaining a Protective Order and indeed a presumption exists
       that fees should be awarded, [Schrager] is not seeking [attorney] fees at this
       time, but reserves the right to do so if there is a violation of any protective
       order that the Court might grant.

(Appellants’ App. 48). Wegner notes that neither Schrager nor the trial court asserts that

he violated the protective order.

       Wegner contends that the aforementioned provision of the motion for protective

order constitutes a waiver of the right to attorney fees provided by Indiana Rule of Trial

Procedure 37(A)(4), which states that if a discovery motion is granted, “the court shall . .

. . 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] fees . . . .”

       Waiver is the intentional relinquishment of a known right, requiring both

knowledge of the existence of the right and the intention to relinquish it. City of Crown

Point v. Misty Woods Properties, LLC, 864 N.E.2d 1069, 1079 (Ind. Ct. App. 2007).

Here, Schrager impliedly refers to his right to attorney fees under T.R. 37(A)(4) and then

indicates a knowing, voluntary, and conditional relinquishment of the right to collect

those fees. When the condition stated in Schrager’s motion did not occur, Schrager, by

the plain language of his motion, voluntarily and knowingly waived the right to pursue an

award of fees pertaining to the motion for protective order. Thus, the trial court’s order




                                              8
awarding attorney fees based upon the motion for a protective order is erroneous as a

matter of law.

2.       Wegner’s Request for Attorney Fees

         Wegner contends that the trial court erred in denying his motion for attorney fees

and request for hearing that was filed on the same day as his motion to correct error.

Wegner premised his argument on Indiana Trial Rule 37.

         Wegner’s motion was filed after the trial court conducted three days of hearings

on the issue of whether Indiana Trial Rule 37 applied to Schrager’s motions. The same

evidence that applied to Schrager’s motions applies to Wegner’s. In effect, Wegner’s

motion for attorney fees and request for hearing was a motion to correct error as it

attempted to revisit the subject of the recently completed hearings.              Under the

circumstances of this case, Wegner could not expend valuable court time by raising Trial

Rule 37 claims for the first time in the equivalent of a motion to correct error. See In re

Estate of Latek, 960 N.E.2d 193, 203 (Ind. Ct. App. 2012) (holding that an issue cannot

be raised for the first time in a motion to correct error). The trial court did not err in

denying Wegner’s untimely motion.

3.       Propriety of an Award of Attorney Fees

     T.R. 37(A)(4) gives the trial court limited discretion in determining not to award

attorney fees or expenses. The rule provides that an award of expenses, including

attorney fees, is not required if the trial court finds “that the opposition to the motion was

                                              9
substantially justified or that other circumstances make an award of expenses unjust.” On

cross-appeal, Schrager contends that the trial court erred in denying his request for

attorney fees with regard to the other four discovery motions.

           In its order, the trial court made the following findings of fact in determining that

Schrager was not entitled to attorney fees with regard to the aforementioned motions:

          B.      Dr. Miller’s Initial Written Discovery

          [Schrager] filed his Motion to Compel Discovery on February 3, 2010,
          asserting that the response provided by Plaintiff to Interrogatory #5 was
          inadequate for a number of reasons. The Court issued its Order Compelling
          Discovery on March 5, 2010. The Order directed the Plaintiff to respond to
          the subject interrogatory fully and completely within 30 days or be subject
          to sanctions, including dismissal.

          It was not until January 21, 2011 in his Motion for Sanctions and
          [Attorney] Fees that the Defendant sought to recover [attorney] fees against
          the Plaintiff for obtaining the Order entered on March 5, 2010.

          The Court’s Order entered on March 5, 2010 indicated that sanctions would
          only be imposed if the Plaintiff should fail to completely answer the
          interrogatory within 30 days. On February 22, 2010, Plaintiff served her
          Supplemental Answer to Interrogatory #5 on the Defendant, prior to the
          Court’s entry of its March 5, 2010 order.

          ****

          D.      Wegner’s Intention to take Deposition of Janet Miller

          On January 18, 2011, the day Mr. Schrager received the Notice to take
          Janet Miller’s deposition, Mr. Schrager sent a proposed Affidavit to Mr.
          Wegner to be used as a substitute for taking her deposition. The proposed
          Affidavit recited that she had no knowledge of any “claims or lawsuits”
          against Dr. Miller outside of the marital relationship.3 The Affidavit did

3
    Janet Miller was also an employee of Dr. Miller’s medical office.
                                                      10
not mention the word “complaints” which was the subject of the Plaintiff’s
subpoena duces tecum.

Mr. Wegner sent an email to Defendant’s attorney in the evening of January
20, 2011 advising that he would accept the Affidavit in lieu of taking Janet
Miller’s deposition if the word “complaints’ was inserted in the affidavit
along with “claims and lawsuits” against Dr. Miller. Mr. Wegner was
unaware that Defendant’s attorney had already filed an Emergency Motion
for Protective Order and [Attorney] Fees on behalf of Janet Miller as a non-
party earlier on January 20, 2011.

In [his] Emergency Motion for Protective Order, [Schrager] alleged that
Mr. Wegner intended to engage in vexatious discovery by conducting what
[he] termed a “fishing expedition” into irrelevant or privileged material and
that he would ask her inappropriate questions about [confidential matters].
Mr. Wegner denied that it was his intent to conduct a fishing expedition
because he had a reasonable belief that Mrs. Miller might have discoverable
information that would lead to admissible evidence.

On January 25, 2011, the Court set a telephonic attorney conference for
January 27, 2011. The impasse over Janet Miller’s deposition was resolved
as a result of the intervention of the Court on January 27, 2011 . . . .

E.     Efforts to Obtain INSPECT Report

On January 21, 2011, the Defendant filed his Motion Requiring that
Amanda Russell Execute HIPAA Compliant Authorization Form. The
Motion alleged that Mr. Wegner was not cooperating in providing the
requested authorization, but no allegation was made that the Plaintiff or Mr.
Wegner had affirmatively refused to provide the authorization.

Mr. Wegner testified that the Plaintiff had previously signed numerous
authorizations for release of documents to the Defendant, and that he and
the Plaintiff were not holding anything back or refusing to provide the
authorization for the INSPECT Report. Mr. Wegner testified that on
January 25, 2011, he received the signed authorization for INSPECT
Report back from [Russell] and that he forwarded the signed authorization
to Defendant’s attorney on the same date.


                                     11
      On January 27, 2011, the Court held a telephonic conference with both
      counsel to resolve several outstanding pretrial and discovery issues. Mr.
      Wegner stated that he had already sent the Plaintiff’s signed authorization
      to Defendant’s attorney, who stated that he had not received it. The Court
      entered an Order on January 28, 2011 directing that Amanda Russell’s
      executed HIPAA Compliant Authorization Form should be provided
      forthwith. Defendant’s attorney acknowledged receiving the authorization,
      but he could not recall the specific date.

      F.     Draft Report of Dr. Gonso

      On January 21, 2011, Defendant filed a Motion to Compel Discovery for
      the purpose of obtaining an order compelling discovery of draft reports
      prepared by Dr. Gonso and written communications between Dr. Gonso
      and Mr. Wegner. The Defendant included a request for [attorney] fees for
      filing this motion in his Motion for Sanctions and Attorney Fees which was
      filed contemporaneously. The alleged basis for seeking [attorney] fees in
      this matter was that the Plaintiff’s conduct in this matter was “part of a
      consistent pattern of obdurate conduct.”

      The Court entered an Order Compelling Discovery on February 15, 2011,
      directing Dr. Gonso to provide all of her written communications with Mr.
      Wegner and draft reports to Defendant’s attorney and to submit to a
      deposition by him, at Mr. Wegner’s expense, for the limited purpose of
      inquiring into those communications and draft reports. The Order
      specifically excluded Mr. Wegner from the Court’s directive to provide
      these documents to Defendant’s attorney.

(Appellants’ App. 14-20).

      The trial court made the following pertinent conclusion of law:

      With respect to additional discovery violations allegedly engaged in by Mr.
      Wegner, the Court concludes that it would be unjust to impose sanctions
      under the circumstances described in the Court’s findings. Mr. Wegner has
      demonstrated that his conduct was substantially justified with respect to the
      alleged discovery violations described in Findings B, D, E and F above.

(Appellants’ App. 21).

                                           12
       Under Indiana Trial Rule 52, the person challenging a trial court’s findings is

required to show that the findings are clearly erroneous. Factual findings are clearly

erroneous if there is no evidence or reasonable inference from the evidence to support the

findings, and we review only the evidence and reasonable inferences therefrom that are

favorable to the judgment without reweighing the evidence or reassessing the credibility

of the witnesses. Argonaut, 953 N.E.2d at 614.

       Here, Schrager contends on cross-appeal that the trial court’s findings and

conclusions are clearly erroneous. With regard to Schrager’s motion to compel a more

complete answer to Interrogatory 5 (addressed as Issue B in the trial court’s findings), it

appears that even though it complied with Schrager’s request for the issuance of an order

to compel, the trial court believed that Schrager filed a hasty motion. Therefore, the trial

court concluded that at the time the order to compel was issued, no sanctionable offense

had occurred. There is evidence to support the trial court’s finding that Wegner and his

client, Russell, had already answered the interrogatory almost two weeks before the trial

court intervened. We cannot say that the trial court was clearly erroneous in denying a

request for attorney fees under these circumstances.

       With regard to Schrager’s motion pertaining to Wegner’s intention to take Janet

Miller’s deposition (addressed as Issue D in the trial court’s findings), the trial court

found that the impasse was occasioned by both parties’ actions. The trial court did not

find that Wegner was engaged in a fishing expedition, and it found that Wegner’s

                                            13
rejection of the already proposed affidavit was proper. Because any “blame” for delay

was attributable to both parties, we cannot say that the trial court was clearly erroneous in

denying a request by Schrager for fees under these circumstances.

       With regard to Schrager’s efforts to obtain an INSPECT Report (addressed as

Issue E in the trial court’s findings), the trial court found that upon receiving an

authorization form from Schrager, Wegner immediately sent the form to Russell for her

to sign. The court also found that Schrager acknowledged receiving the authorization,

but he could not recall the specific date upon which it was received. The evidence clearly

establishes that no discovery violation occurred; therefore, its finding is not clearly

erroneous.

       Schrager’s motion pertaining to provision of Dr. Gonso’s draft report (addressed

as Issue F in the trial court’s findings) based its request for attorney fees on Schrager’s

belief that Wegner’s actions were “part of a consistent pattern of obdurate conduct.”

(Appellants’ App. 19). The trial court responded by ordering Dr. Gonso to produce the

report, finding that a portion of the misunderstanding about the report was attributable to

Schrager. The evidence supports this finding.

       Schrager also contends that the trial court neglected to consider Wegner’s pattern

of misconduct with regard to the aforementioned discovery issues. It is apparent that the

trial court attributed a portion of the problems associated with the pattern of discovery




                                             14
disputes to Schrager’s actions.      We cannot say that the trial court clearly erred in

considering each situation to arrive at this conclusion.

4.     Spoliation

       Schrager further contends on cross-appeal that the trial court erred in not

addressing the issue of spoliation in its findings of fact and conclusions of law.

Spoliation consists of “[t]he intentional destruction, mutilation, alteration, or concealment

of evidence, usually a document.” Cahoon v. Cummings, 734 N.E.2d 535, 545 (Ind.

2000). Schrager contends that Wegner intentionally destroyed Dr. Gonso’s draft report.

       This appeal pertains to the trial court’s rulings as they apply to requests for

sanctions, including attorney fees. We have carefully read both Schrager’s initial and

reply briefs, and even though Schrager points to a mention of spoliation in his response to

Wegner’s motion for sanctions and to confused and obscure discussions during the

sanctions hearing about the loss or destruction of evidence, the discussion of spoliation is

part of a larger discussion regarding the matter designated by the trial court as Issue F.

In short, to the extent that Schrager directed the trial court’s attention to spoliation, he did

so within the broader parameters of Issue F. We have ruled on this issue and see no error

in the trial court’s treatment of the issue as a whole.

                                       CONCLUSION

       We reverse and remand with instructions that the trial court vacate its award of

attorney fees on Schrager’s motion for protective order. Conversely, the trial court did

                                              15
not err in denying Wegner’s request for attorney fees. Furthermore, we hold that the trial

court did not err in denying expenses, including attorney fees, on Schrager’s other four

discovery motions. Finally, the trial court’s lack of findings on spoliation as a separate

issue does not constitute error.

       Affirmed in part and reversed in part.

KIRSCH, J., and NAJAM, J., concur.




                                            16
