ATTORNEY FOR PETITIONER:                         ATTORNEYS FOR RESPONDENT:
JAMES K. GILDAY                                  GREGORY F. ZOELLER
GILDAY & ASSOCIATES, P.C.                        INDIANA ATTORNEY GENERAL
Indianapolis, IN                                 JOHN P. LOWREY
                                                 DEPUTY ATTORNEY GENERAL
                                                 Indianapolis, IN



                              IN THE
                        INDIANA TAX COURT
                                                      Mar 07 2016, 11:13 am
______________________________________________________________________

NICK POPOVICH,                        )
                                      )
     Petitioner,                      )
                                      )
                 v.                   )   Cause No. 49T10-1010-TA-00053
                                      )
INDIANA DEPARTMENT OF STATE           )
REVENUE,                              )
                                      )
     Respondent.                      )
______________________________________________________________________

             ORDER ON RESPONDENT’S REQUEST FOR EXPENSES
                 PURSUANT TO INDIANA TRIAL RULE 37(A)(4)

                                 FOR PUBLICATION
                                   March 7, 2016

WENTWORTH, J.

      The Indiana Department of State Revenue argues that it is entitled to expenses

in the amount of $5,175.25 for successfully defending against Nick Popovich’s second

motion to compel. See generally Popovich v. Indiana Dep’t of State Revenue (Popovich

II), 7 N.E.3d 419 (Ind. Tax Ct. 2014), reh’g denied. The Court agrees.
                                      BACKGROUND1

       In December of 2011, Popovich subpoenaed the Department’s designated Trial

Rule 30(B)(6) witness, directing him to bring several pages of original documentation to

a deposition.     Less than 24 hours before the deposition, the Department emailed

Popovich to explain that it would bring only copies of the requested documentation to

the deposition because the original documents could not be removed from its offices.

That same afternoon, Popovich stated that he would file another motion to compel if the

Department did not bring at least 27-pages of specified original documentation to the

deposition. When the Department’s witness appeared at the deposition without any

original documents, Popovich promptly adjourned the deposition. Approximately two

weeks later, in January of 2012, Popovich filed his second motion to compel the

production of original documents.

       On April 24, 2012, after conducting a hearing, the Court denied Popovich’s

second motion to compel because Popovich did not document his attempts to resolve

the matter informally as required by Indiana Trial Rule 26(F). See Popovich II, 7 N.E.3d

at 422-23.      Popovich subsequently filed a motion to reconsider, arguing that the

Department’s obdurate behavior throughout the discovery process had made complying

with Trial Rule 26(F) futile.    On June 2, 2014, the Court denied that motion.             See

Popovich v. Indiana Dep’t of State Revenue (Popovich III), No. 49T10-1010-TA-00053,

13 N.E.3d 954, at *2 (Ind. Tax Ct. 2014).


1
    The Court has discussed the facts and procedural history regarding the parties’ discovery
disputes on several occasions and, therefore, it will only provide an abbreviated version of both
for purposes of this matter. See Popovich v. Indiana Dep’t of State Revenue (Popovich I), 7
N.E.3d 406, 409-11 (Ind. Tax Ct. 2014); Popovich v. Indiana Dep’t of State Revenue (Popovich
II), 7 N.E.3d 419, 420-21 (Ind. Tax Ct. 2014), reh’g denied; Popovich v. Indiana Dep’t of State
Revenue (Popovich IV), 17 N.E.3d 405, 407-09 (Ind. Tax Ct. 2014).
                                               2
      On October 22, 2014, the Court conducted a hearing on the Department’s

request for expenses as required by Indiana Trial Rule 37(A)(4). Additional facts will be

supplied as necessary.

                                           LAW

      Indiana Trial Rule 37(A)(4) concerns the awarding of expenses for successfully

defending against discovery enforcement motions. The Rule, in relevant part, states:

          If [a] 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.

Ind. Trial Rule 37(A)(4) (emphasis added).        Thus, when a discovery enforcement

motion, like Popovich’s second motion to compel, is denied, a presumption arises that

the Court will also order the reimbursement of the prevailing party’s reasonable

expenses. See Penn Cent. Corp. v. Buchanan, 712 N.E.2d 508, 511 (Ind. Ct. App.

1999), trans. denied; Georgetown Steel Corp. v. Chaffee, 519 N.E.2d 574, 576 (Ind. Ct.

App. 1988), trans. denied. This award of expenses 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. Penn Cent., 712 N.E.2d at 511. “[A]

person is ‘substantially justified’ in seeking to compel or in resisting discovery, for

purposes of avoiding the sanctions provided by [Trial Rule 37(A)(4)], if reasonable

persons could conclude that a genuine issue existed as to whether a person was bound

to comply with the requested discovery.” Id. at 513.




                                             3
                              ANALYSIS AND DISCUSSION

         The issue before the Court is whether the Department is entitled to be

reimbursed for expenses incurred in successfully defending against Popovich’s second

motion to compel. The resolution of this issue depends on the answers to the following

questions: 1) whether Popovich was substantially justified in filing the second motion to

compel; and 2) whether the Department’s request for expenses in the amount of

$5,175.25 is reasonable.2

                                             (1)

         Popovich claims that he was substantially justified in filing his second motion to

compel original documents because he only sought to recover the costs from the

canceled deposition that was caused by the Department’s malfeasance. (See Pet’r Br.

Supp. Award Expenses Re His First Mot. Compel & Resp’t Mot. Protective Order &

Opp’n Award Expenses Resp’t Re His Second Mot. Compel (“Pet’r Br.”) at 13, Oct. 15,

2014.)     More specifically, Popovich points out that the Department ignored his

subpoena, failed to avail itself of the motion to quash remedy, and slept on its

knowledge that it would not comply with his subpoena until the eleventh hour. (See

Pet’r Br. at 14; Expenses Hr’g Tr. at 57-63, Oct. 22, 2014.) Popovich further explains

that if he had more clearly “couched” his second motion to compel as a Trial Rule 45(F)

motion for contempt for failure to obey the subpoena, he likely would have prevailed

and, therefore, was substantially justified in filing his second motion to compel. (See

Expenses Hr’g Tr. at 57, 61-62.)


2
  The Court will not separately address whether other circumstances would make an award of
expenses unjust because Popovich’s arguments on that issue are essentially the same as his
substantial justification arguments. (Compare Expenses Hr’g Tr. at 56-63 with 67-69, Oct. 22,
2014.)
                                             4
      This Court has already explained that Popovich cannot “walk away from the

requirements of the remedy he sought” on the basis that he meant to file a different

motion. See Popovich III, 13 N.E.3d 954, at *1. Similarly, the Court has explained that

Popovich cannot evade the requirements of Trial Rule 26(F) by pointing his finger at the

Department. See Popovich II, 7 N.E.3d at 422-23. See also, e.g., Hill v. Fitzpatrick,

827 N.E.2d 138, 139-42 (Ind. Ct. App. 2005) (upholding discovery sanctions despite an

attorney’s attempt to shift the blame to opposing counsel). When Popovich filed his

second motion to compel, the requirements of Trial Rule 26(F) to have an informal

meeting to attempt to reconcile the issue and to document his attempts in his motion

were clear. See Ind. Trial Rule 26(F); see also generally Walker v. McCrea, 725 N.E.2d

526 (Ind. Ct. App. 2000). Accordingly, a reasonable person could not conclude that the

Department’s mulish behavior relieved Popovich from complying with the requirements

of Trial Rule 26(F).     In other words, two wrongs do not make a right here.

Consequently, the Court finds that Popovich was not substantially justified in filing his

second motion to compel.

                                           (2)

      The Department has requested an award of $5,175.25 for expenses for

successfully defending against Popovich’s second motion to compel. (See Resp’t Br.

Resp. Pet’r Mot. Trial Rule 37 Sanctions, Including J. & Fees (“Resp’t Br.”) at 11-12,

May 5, 2014; Resp’t Notice Aff. Supp. Award Fees & Costs Pursuant to Ind. Trial Rule

37(A)(4), Oct. 20, 2014.)    In support of its request, the Department submitted the

affidavit of its attorney, John P. Lowery, as evidence of the expenses incurred in

resisting both Popovich’s second motion to compel and his motion to reconsider. (See



                                           5
generally Aff. John P. Lowrey Supp. Award Fees & Costs Pursuant to Ind. Trial Rule

37(A)(4), Oct. 20, 2014.)   Popovich    does    not   question   the   reliability   of   the

Department’s submission nor does he claim that the requested amount of expenses is

unreasonable. (See Pet’r Br. at 13-15.) (See also generally Expenses Hr’g Tr.) Having

considered the evidence presented and the requirements of Trial Rule 37(A)(4), the

Court finds that Popovich must pay the Department’s expenses of $5,175.25.

                                       CONCLUSION

      Popovich was not substantially justified in filing his second motion to compel, and

therefore, the Department is entitled to a reimbursement for expenses in the amount of

$5,175.25 for successfully defending against that motion.

      SO ORDERED this 7th day of March 2016.



                                                _____________________________
                                                Martha Blood Wentworth, Judge
                                                Indiana Tax Court




Distribution: James K. Gilday, John P. Lowrey




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