MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                   FILED
regarded as precedent or cited before any                                     Jan 31 2020, 10:04 am

court except for the purpose of establishing                                       CLERK
                                                                               Indiana Supreme Court
the defense of res judicata, collateral                                           Court of Appeals
                                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE
Brent E. Inabnit                                         Kendra G. Gjerdingen
Nicholas J. Derda                                        Dustin L. Plummer
Sopko, Nussbaum, Inabnit &                               Erick T. Gjerdingen
Kaczmarek                                                Mallor Grodner LLP
South Bend, Indiana                                      Bloomington, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the                                     January 31, 2020
Guardianship of W.S., Protected                          Court of Appeals Case No.
Person,                                                  19A-GU-1428
Steven Strong and Susan                                  Appeal from the
Cocquyt,                                                 St. Joseph Probate Court
                                                         The Honorable
Appellants-Petitioners,
                                                         Jason A. Cichowicz, Judge
        v.                                               The Honorable
                                                         Barbara J. Johnston, Magistrate
                                                         Trial Court Cause No.
Mallor Grodner LLP,
                                                         71J01-1709-GU-181
Appellee-Respondent.



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-GU-1428 | January 31, 2020                  Page 1 of 8
[1]   W.S. was the subject of guardianship proceedings and was represented during

      the proceedings by Mallor Grodner LLP (“Mallor Grodner”). As a part of

      those proceedings, Mallor Grodner filed a petition for attorney fees to be paid

      from Steven Strong and Susan Cocquyt (“the Guardians”), and the Guardians

      sought discovery regarding the fee petition by filing a subpoena duces tecum

      and deposition notice. The trial court denied both and, after a hearing, granted

      Mallor Grodner’s petition for attorney fees. The Guardians appeal and raise

      several issues, of which we find the following dispositive: whether the trial

      court abused its discretion when it denied the Guardians’ subpoena duces

      tecum and request for deposition.


[2]   We vacate and remand.


                                 Facts and Procedural History
[3]   In early 2017, the Guardians, who are two of W.S.’s children, noticed that W.S.

      was exhibiting concerning behaviors and spending habits. In August 2017,

      W.S. was seen by Dr. Katherine Hanlon (“Dr. Hanlon”), a neurologist, who

      determined that W.S. was totally incapacitated and in need of a guardian for

      both personal and financial purposes and incapable of consenting to the

      appointment of a guardian. Ex. A at 31-32. On September 5, 2017, the

      Guardians filed a petition for guardianship over W.S. Appellants’ App. Vol. 2 at

      20. W.S. retained Mallor Grodner to represent him in defending against the

      guardianship petition, with Anne Curry (“Curry”) being one of the attorneys

      working on the case. Curry sent W.S. to Dr. Martin Farlow (“Dr. Farlow”), a

      neurologist, for additional neurological testing. On October 31, 2017, Dr.
      Court of Appeals of Indiana | Memorandum Decision 19A-GU-1428 | January 31, 2020   Page 2 of 8
      Farlow issued a report, in which the doctor stated his belief that W.S. could not

      manage his own finances and needed someone to represent him and manage

      his financial affairs. Ex. 3 at 26. On February 28, 2018, Dr. Hanlon signed an

      affidavit prepared by Curry, in which Dr. Hanlon stated, “[b]ased upon Dr.

      Farlow’s report and conclusions, I agree that [W.S.] is not currently in need of

      the appointment of a guardian to make all decisions for him.” Id. at 24

      (emphasis added).


[4]   On May 1, 2018, Mallor Grodner filed a motion for summary judgment

      requesting judgment in W.S.’s favor because there was no evidence supporting

      a finding of incapacity. On May 16, 2018, Dr. Farlow was deposed and

      testified that, as of the date of his report, it was clear that W.S. could not make

      his own financial decisions and that it was also Dr. Farlow’s opinion that W.S.

      needed assistance with medical decisions. Tr. Vol. 2 at 112. Dr. Hanlon was

      also deposed, and she testified that her opinions in her initial report that W.S.

      was totally incapacitated and in need of a guardian had not changed.

      Appellants’ Conf. App. Vol. 2 at 216-17. The trial court denied the motion for

      summary judgment and proceeded to trial on the guardianship petition. On

      August 24, 2018, the trial court issued an order finding W.S. to be incapacitated

      and appointing the Guardians to have guardianship over W.S.’s estate and

      person. Appellants’ App. Vol. 3 at 29-30.


[5]   On September 7, 2018, Mallor Grodner filed a petition for attorney fees,

      requesting the trial court to order the Guardians to pay Mallor Grodner’s

      invoice for legal fees in the amount of $64,331.10 and to pay legal fees to Jones

      Court of Appeals of Indiana | Memorandum Decision 19A-GU-1428 | January 31, 2020   Page 3 of 8
      Oberchain, LLP, who acted as local counsel during the guardianship

      proceedings, in the amount of $1,737.50. Id. at 33-35. On November 7, 2018,

      an additional petition for fees was filed to pay the expenses of Dr. Farlow as the

      medical expert in the amount of $1,500.00. Id. at 95-96.


[6]   On November 30, 2018, in preparation for the evidentiary hearing on the fee

      petition, the Guardians served Curry with a deposition notice seeking to depose

      her and a subpoena duces tecum (“the Subpoena”), requesting Curry to

      produce documents related to her representation of W.S., including, but not

      limited to: retainer agreements; documents reflecting W.S.’s mental capacity;

      documents exchanged between Curry and Pam Burnett, W.S.’s fiancée

      (“Burnett”); invoices sent from Mallor Grodner to W.S.; documents reflecting

      W.S.’s authorization to retain Dr. Farlow to testify at trial; and documents

      reflecting settlement communications. Id. at 113. On December 10, 2018,

      Mallor Grodner filed a motion for a protective order to deny the requested

      deposition and a motion to quash the Subpoena. Id. at 106-09. A hearing was

      held regarding these motions, and on March 27, 2019, the trial court granted

      the motions, preventing the Guardians from obtaining the requested documents

      or deposing Curry prior to the hearing on the fee petitions. Appellants’ App. Vol.

      2 at 14.


[7]   On April 11, 2019, the Guardians filed a second subpoena duces tecum on

      Curry commanding her to appear at the hearing on the fee petition and

      requesting her to produce documents related to the petition for fees. Appellants’

      App. Vol. 3 at 126. In response, Mallor Grodner filed another motion to quash

      Court of Appeals of Indiana | Memorandum Decision 19A-GU-1428 | January 31, 2020   Page 4 of 8
      the subpoena duces tecum. Id. at 127. On April 17, 2019, the trial court held

      an evidentiary hearing on the fee petition. After taking the matter under

      advisement, the trial court issued an order granting Mallor Grodner’s fee

      petitions and awarding $64,331.10 to Mallor Grodner, $1,737.50 to Jones

      Oberchain, LLP, and $1,500.00 for the expert fees of Dr. Farlow. The

      Guardians now appeal.


                                     Discussion and Decision
[8]   A trial court has broad discretion in discovery matters, and therefore, our

      review is limited to determining whether the trial court abused its discretion.

      Auto-Owners Ins. Co. v. C&J Real Estate, Inc., 996 N.E.2d 803, 804 (Ind. Ct. App.

      2013). An abuse of discretion occurs when the trial court reaches a conclusion

      that is against the logic and natural inferences to be drawn from the facts of the

      case. Id. Indiana Trial Rule 26(B)(1), which governs discovery, states in

      pertinent part:


              Parties may obtain discovery regarding any matter, not
              privileged, which is relevant to the subject-matter involved in the
              pending action, whether it relates to the claim or defense of the
              party seeking discovery or the claim or defense of any other party
              . . . . It is not ground for objection that the information sought
              will be inadmissible at the trial if the information sought appears
              reasonably calculated to lead to the discovery of admissible
              evidence.


      “Indiana’s discovery rules are designed to ‘allow a liberal discovery process, the

      purposes of which are to provide parties with information essential to litigation


      Court of Appeals of Indiana | Memorandum Decision 19A-GU-1428 | January 31, 2020   Page 5 of 8
       of the issues, to eliminate surprise, and to promote settlement.’” Waterfield v.

       Waterfield, 61 N.E.3d 314, 333 (Ind. Ct. App. 2016) (quoting Brown v. Katz, 868

       N.E.2d 1159, 1165 (Ind. Ct. App. 2007)), trans. denied.


[9]    The Guardians argue that the trial court abused its discretion when it granted

       Mallor Grodner’s motion for protective order and motion to quash the

       Subpoena, precluding the Guardians from obtaining the requested documents

       and deposing Curry prior to the hearing on the fee petitions. By granting these

       motions, the Guardians contend that the trial court prevented them from

       adequately presenting a case in opposition to Mallor Grodner’s fee petition.

       The Guardians maintain that they had an obligation to conduct due diligence

       and obtain information regarding whether the fees incurred were reasonable,

       and the trial court’s preclusion of any discovery from Mallor Grodner regarding

       the fees wholly prevented the Guardians from gaining the information

       necessary to present their case. We agree.


[10]   Pursuant to Indiana Trial Rule 26(C), “for good cause shown” a trial court may

       enter an order protecting “a party or person from annoyance, embarrassment,

       oppression, or undue burden or expense.” Under this rule, the burden is

       initially on the party seeking the protective order to show “good cause” why

       such an order is required to protect it from “annoyance, embarrassment,

       oppression, or undue burden or expense[.]” Estate of Lee ex rel. McGarrah v. Lee

       & Urbahns Co., 876 N.E.2d 361, 367-68 (Ind. Ct. App. 2007). Once a showing

       of good cause has been made, the burden shifts to the party seeking discovery of



       Court of Appeals of Indiana | Memorandum Decision 19A-GU-1428 | January 31, 2020   Page 6 of 8
       protected material to establish that the trial court’s protective order constitutes

       an abuse of discretion. Id. at 368.


[11]   Here, the Guardians sought to depose Curry and requested that certain

       documents related to her representation of W.S. be produced in order to

       determine whether Mallor Grodner was entitled to the fees requested in its

       petition and whether those fees were reasonable. Appellants’ App. Vol. 3 at 114-

       15. In requesting the deposition of Curry, the Guardians had offered to limit

       the deposition to ninety minutes, conduct it over the telephone or internet so

       that Curry would not have to leave her office, and schedule it at a time

       convenient for Curry. Id. at 115; Tr. Vol. 2 at 12. In the motion for protective

       order, Mallor Grodner stated that the requested deposition was “designed to

       oppress attorney Curry with unnecessary expense” and that the document

       request was “unreasonable and oppressive” for the same reasons. Appellants’

       App. Vol. 3 at 108. Mallor Grodner asserted that, through their discovery

       requests, the Guardians were seeking to relitigate the guardianship and to

       improperly claim that Curry had engaged in misconduct. Id. at 107.


[12]   It was Mallor Grodner’s burden to show good cause why the protective order

       should be granted. Mallor Grodner failed to meet that burden. The Guardians

       sought to depose Curry to ascertain whether the requested attorney fees were

       reasonable and if Mallor Grodner was actually entitled to the fees. In order to

       alleviate any undue burden or expense on Curry in conducting the deposition,

       the Guardians offered to keep it brief and conduct it over the phone or internet.

       In order to determine if the requested attorney fees were reasonable, the

       Court of Appeals of Indiana | Memorandum Decision 19A-GU-1428 | January 31, 2020   Page 7 of 8
       Guardians sought to perform their due diligence by deposing Curry, and we

       conclude that Mallor Grodner failed to show good cause why a protective order

       should have been granted and the Guardians’ request for a deposition should be

       denied. It was an abuse of discretion for the trial court to grant the protective

       order and deny the request to depose Curry. Further, to the extent that the

       documents requested by the Guardians are relevant to the ascertainment of

       whether the attorney fees are reasonable and are able to be produced under the

       rules of discovery, they should have been produced, and it was an abuse of

       discretion to deny the Guardians the ability to conduct discovery. We conclude

       that the trial court’s order granting the protective order and the motion to quash

       should be reversed, and, therefore, the order granting the fee petition is vacated.

       We remand to the trial court so further discovery can be conducted.


[13]   Vacated and remanded.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-GU-1428 | January 31, 2020   Page 8 of 8
