Bill Text: IN SB0131 | 2013 | Regular Session | Introduced
Bill Title: Attorney's fees in civil actions.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2013-01-07 - First reading: referred to Committee on Civil Law [SB0131 Detail]
Download: Indiana-2013-SB0131-Introduced.html
Citations Affected: IC 4-6-3-6; IC 5-8-1-35; IC 5-11-5.5-6; IC 5-14;
IC 24-2-3-5; IC 24-4-7-5; IC 26-1-2.1-108; IC 27-1-3.1-17;
IC 28-1-5-8.5; IC 31-17-4-3; IC 32-30-6-9.5; IC 34-6-2; IC 34-7-7-8;
IC 34-12-3-4; IC 34-13; IC 34-52-1-1.
Synopsis: Attorney's fees in civil actions. Requires an award of
reasonable and necessary attorney's fees to the prevailing party in a
civil action when the nonprevailing party: (1) brought the action on a
claim or asserted a defense that is frivolous, unreasonable, vexatious,
or groundless; (2) continued to litigate the action or defense after the
party's claim or defense clearly became frivolous, unreasonable,
vexatious, or groundless; or (3) litigated the action in bad faith.
Exempts governmental entities and employees from liability for an
award of attorney's fees.
Effective: July 1, 2013.
January 7, 2013, read first time and referred to Committee on Civil Law.
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
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A BILL FOR AN ACT to amend the Indiana Code concerning civil
procedure.
person from unreasonable annoyance, embarrassment, oppression,
burden, expense, or to protect privileged information, trade secrets, or
information which is confidential under any other provision of law. If
the court finds that either party has acted in bad faith in seeking or
resisting the demand, it may order that person to pay the other parties
reasonable expenses including attorneys' fees.
(1) charging and collecting illegal fees for services rendered or to be rendered in
(2) refusing or neglecting to perform the official duties pertaining to
(3) violating IC 36-6-4-17(b) if the officer is the executive of a township;
the court must cite the party charged to appear before the court at any time not more than ten (10) nor less than five (5) days from the time the accusation was presented, and on that day or some other subsequent day not more than twenty (20) days from the time the accusation was presented must proceed to hear, in a summary manner, the accusation and evidence offered in support of the same, and the answer and evidence offered by the party accused.
(b) If after the hearing under subsection (a) it appears that the charge is sustained, the court must do the following:
(1) Enter a decree that the party accused be deprived of
(2) Enter a judgment as follows:
(A) For five hundred dollars ($500) in favor of the prosecuting officer.
(B) For costs as are allowed in civil cases.
(C) For the amount of money that was paid to the officer in compensation from the day when the accusation was filed under this section to the day when judgment is entered in favor of the public entity paying the compensation to the officer.
SECTION 23, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2013]: Sec. 6. (a) The person who initially filed the complaint
is entitled to the following amounts if the state prevails in the action:
(1) Except as provided in subdivision (2), if the attorney general
or the inspector general intervened in the action, the person is
entitled to receive at least fifteen percent (15%) and not more than
twenty-five percent (25%) of the proceeds of the action or
settlement, plus reasonable attorney's fees and an amount to cover
the expenses and costs of bringing the action.
(2) If the attorney general or the inspector general intervened in
the action and the court finds that the evidence used to prosecute
the action consisted primarily of specific information contained
in:
(A) a transcript of a criminal, a civil, or an administrative
hearing;
(B) a legislative, an administrative, or another public report,
hearing, audit, or investigation; or
(C) a news media report;
the person is entitled to receive not more than ten percent (10%)
of the proceeds of the action or settlement, plus reasonable
attorney's fees and an amount to cover the expenses and costs of
bringing the action.
(3) If the attorney general or the inspector general did not
intervene in the action, the person is entitled to receive at least
twenty-five percent (25%) and not more than thirty percent (30%)
of the proceeds of the action or settlement, plus reasonable
attorney's fees and an amount to cover the expenses and costs of
bringing the action.
(4) If the person who initially filed the complaint:
(A) planned and initiated the violation of section 2 of this
chapter; or
(B) has been convicted of a crime related to the person's
violation of section 2 of this chapter;
the person is not entitled to an amount under this section.
After conducting a hearing at which the attorney general or the
inspector general and the person who initially filed the complaint may
be heard, the court shall determine the specific amount to be awarded
under this section to the person who initially filed the complaint. The
award of reasonable attorney's fees plus an amount to cover the
expenses and costs of bringing the action is an additional cost assessed
against the defendant and may not be paid from the proceeds of the
civil action.
(1) obtain a declaratory judgment;
(2) enjoin continuing, threatened, or future violations of this chapter; or
(3) declare void any policy, decision, or final action:
(A) taken at an executive session in violation of section 3(a) of this chapter;
(B) taken at any meeting of which notice is not given in accordance with section 5 of this chapter;
(C) that is based in whole or in part upon official action taken at any:
(i) executive session in violation of section 3(a) of this chapter;
(ii) meeting of which notice is not given in accordance with section 5 of this chapter; or
(iii) series of gatherings in violation of section 3.1 of this chapter; or
(D) taken at a meeting held in a location in violation of section 8 of this chapter.
The plaintiff need not allege or prove special damage different from that suffered by the public at large.
(b) Regardless of whether a formal complaint or an informal inquiry is pending before the public access counselor, any action to declare any policy, decision, or final action of a governing body void, or to enter an injunction which would invalidate any policy, decision, or final action of a governing body, based on violation of this chapter occurring before the action is commenced, shall be commenced:
(1) prior to the delivery of any warrants, notes, bonds, or obligations if the relief sought would have the effect, if granted, of invalidating the notes, bonds, or obligations; or
(2) with respect to any other subject matter, within thirty (30) days of either:
(A) the date of the act or failure to act complained of; or
(B) the date that the plaintiff knew or should have known that the act or failure to act complained of had occurred;
whichever is later. If the challenged policy, decision, or final action is recorded in the memoranda or minutes of a governing body, a plaintiff is considered to have known that the act or failure to act complained of had occurred not later than the date that the memoranda or minutes are first available for public inspection.
(c) If a court finds that a governing body of a public agency has violated this chapter, it may not find that the violation was cured by the governing body by only having taken final action at a meeting that complies with this chapter.
(d) In determining whether to declare any policy, decision, or final action void, a court shall consider the following factors among other relevant factors:
(1) The extent to which the violation:
(A) affected the substance of the policy, decision, or final action;
(B) denied or impaired access to any meetings that the public had a right to observe and record; and
(C) prevented or impaired public knowledge or understanding of the public's business.
(2) Whether voiding of the policy, decision, or final action is a necessary prerequisite to a substantial reconsideration of the subject matter.
(3) Whether the public interest will be served by voiding the policy, decision, or final action by determining which of the following factors outweighs the other:
(A) The remedial benefits gained by effectuating the public policy of the state declared in section 1 of this chapter.
(B) The prejudice likely to accrue to the public if the policy, decision, or final action is voided, including the extent to which persons have relied upon the validity of the challenged action and the effect declaring the challenged action void would have on them.
(4) Whether the defendant acted in compliance with an informal inquiry response or advisory opinion issued by the public access counselor concerning the violation.
(e) If a court declares a policy, decision, or final action of a governing body of a public agency void, the court may enjoin the
governing body from subsequently acting upon the subject matter of
the voided act until it has been given substantial reconsideration at a
meeting or meetings that comply with this chapter.
(f) In any action filed under this section, a court shall award
reasonable attorney's fees and court costs and to the prevailing party
as required under IC 34-52-1-1. In addition, the court shall award
other reasonable expenses of litigation to the prevailing party if:
(1) the plaintiff prevails; or
(2) the defendant prevails and the court finds that the action is
frivolous and vexatious.
The plaintiff is not eligible for the awarding of attorney's fees, court
costs, and other reasonable expenses if the plaintiff filed the action
without first seeking and receiving an informal inquiry response or
advisory opinion from the public access counselor, unless the plaintiff
can show the filing of the action was necessary to prevent a violation
of this chapter.
(g) A court may assess a civil penalty under section 7.5 of this
chapter only if the plaintiff obtained an advisory opinion from the
public access counselor before filing an action under this section as set
forth in section 7.5 of this chapter.
(h) A court shall expedite the hearing of an action filed under this
section.
(1) the person designated by the public agency as being responsible for public records release decisions refuses to permit inspection and copying of a public record when a request has been made; or
(2) twenty-four (24) hours elapse after any employee of the public agency refuses to permit inspection and copying of a public record when a request has been made;
whichever occurs first.
(b) If a person requests by mail or by facsimile a copy or copies of a public record, a denial of disclosure does not occur until seven (7) days have elapsed from the date the public agency receives the request.
(c) If a request is made orally, either in person or by telephone, a public agency may deny the request orally. However, if a request initially is made in writing, by facsimile, or through enhanced access,
or if an oral request that has been denied is renewed in writing or by
facsimile, a public agency may deny the request if:
(1) the denial is in writing or by facsimile; and
(2) the denial includes:
(A) a statement of the specific exemption or exemptions
authorizing the withholding of all or part of the public record;
and
(B) the name and the title or position of the person responsible
for the denial.
(d) This subsection applies to a board, a commission, a department,
a division, a bureau, a committee, an agency, an office, an
instrumentality, or an authority, by whatever name designated,
exercising any part of the executive, administrative, judicial, or
legislative power of the state. If an agency receives a request to inspect
or copy a record that the agency considers to be excepted from
disclosure under section 4(b)(19) of this chapter, the agency may
consult with the counterterrorism and security council established by
IC 10-19-8-1. If an agency denies the disclosure of a record or a part of
a record under section 4(b)(19) of this chapter, the agency or the
counterterrorism and security council shall provide a general
description of the record being withheld and of how disclosure of the
record would have a reasonable likelihood of threatening the public
safety.
(e) A person who has been denied the right to inspect or copy a
public record by a public agency may file an action in the circuit or
superior court of the county in which the denial occurred to compel the
public agency to permit the person to inspect and copy the public
record. Whenever an action is filed under this subsection, the public
agency must notify each person who supplied any part of the public
record at issue:
(1) that a request for release of the public record has been denied;
and
(2) whether the denial was in compliance with an informal inquiry
response or advisory opinion of the public access counselor.
Such persons are entitled to intervene in any litigation that results from
the denial. The person who has been denied the right to inspect or copy
need not allege or prove any special damage different from that
suffered by the public at large.
(f) The court shall determine the matter de novo, with the burden of
proof on the public agency to sustain its denial. If the issue in de novo
review under this section is whether a public agency properly denied
access to a public record because the record is exempted under section
4(a) of this chapter, the public agency meets its burden of proof under
this subsection by establishing the content of the record with adequate
specificity and not by relying on a conclusory statement or affidavit.
(g) If the issue in a de novo review under this section is whether a
public agency properly denied access to a public record because the
record is exempted under section 4(b) of this chapter:
(1) the public agency meets its burden of proof under this
subsection by:
(A) proving that the record falls within any one (1) of the
categories of exempted records under section 4(b) of this
chapter; and
(B) establishing the content of the record with adequate
specificity and not by relying on a conclusory statement or
affidavit; and
(2) a person requesting access to a public record meets the
person's burden of proof under this subsection by proving that the
denial of access is arbitrary or capricious.
(h) The court may review the public record in camera to determine
whether any part of it may be withheld under this chapter. However, if
the complaint alleges that a public agency denied disclosure of a public
record by redacting information in the public record, the court shall
conduct an in camera inspection of the public record with the redacted
information included.
(i) In any action filed under this section, a court shall award
reasonable attorney's fees and court costs and to the prevailing party
as required under IC 34-52-1-1. In addition, the court shall award
other reasonable expenses of litigation to the prevailing party if:
(1) the plaintiff substantially prevails; or
(2) the defendant substantially prevails and the court finds the
action was frivolous or vexatious.
The plaintiff is not eligible for the awarding of attorney's fees, court
costs, and other reasonable expenses if the plaintiff filed the action
without first seeking and receiving an informal inquiry response or
advisory opinion from the public access counselor, unless the plaintiff
can show the filing of the action was necessary because the denial of
access to a public record under this chapter would prevent the plaintiff
from presenting that public record to a public agency preparing to act
on a matter of relevance to the public record whose disclosure was
denied.
(j) A court may assess a civil penalty under section 9.5 of this
chapter only if the plaintiff obtained an advisory opinion from the
public access counselor before filing an action under this section as set
forth in section 9.5 of this chapter.
(k) A court shall expedite the hearing of an action filed under this
section.
(1) a claim of misappropriation is made in bad faith;
(2) a motion to terminate an injunction is made or resisted in bad faith; or
(3) willful and malicious misappropriation exists;
the court
(b) A principal who in bad faith fails to comply with subsection (a) shall be liable, in a civil action brought by the sales representative, for exemplary damages in an amount no more than three (3) times the sum of the commissions owed to the sales representative.
(c) In a civil action under subsection (b), a principal against whom exemplary damages are awarded shall pay the sales representative's reasonable attorney's fees and court costs.
(2) With respect to a consumer lease, if the court as a matter of law finds that a lease contract or any clause of a lease contract has been induced by unconscionable conduct or that unconscionable conduct has occurred in the collection of a claim arising from a lease contract, the court may grant appropriate relief.
(3) Before making a finding of unconscionability under subsection (1) or (2), the court, on its own motion or that of a party, shall afford
the parties a reasonable opportunity to present evidence as to the
setting, purpose, and effect of the lease contract or clause thereof, or of
the conduct.
(4) In an action in which the lessee claims unconscionability with
respect to a consumer lease:
(a) If the court finds unconscionability under subsection (1) or (2),
the court shall award reasonable attorney's fees to the lessee as
required under IC 34-52-1-1.
(b) If the court does not find unconscionability and the lessee
claiming unconscionability has brought or maintained an action
the lessee knew to be groundless, the court shall award reasonable
attorney's fees to the party against whom the claim is made as
required under IC 34-52-1-1.
(c) In determining attorney's fees, the amount of the recovery on
behalf of the claimant under subsections (1) and (2) is not
controlling.
(b) No cause of action may arise, and no liability be imposed against any person for the act of communicating or delivering information or data to the commissioner or the commissioner's authorized representative or examiner pursuant to an examination made under this chapter, if that act of communication or delivery is performed in good faith and without fraudulent intent or the intent to deceive.
(c) This section does not abrogate or modify in any way any common law or statutory privilege or immunity enjoyed by any person identified in subsection (a).
complained of occurred or unless the person became a shareholder
through transfer by operation of law from one who was a shareholder
at that time. The derivative proceeding may not be maintained if it
appears that the person commencing the proceeding does not fairly and
adequately represent the interests of the shareholders in enforcing the
right of the corporation.
(b) A complaint in a proceeding brought in the right of a corporation
must be verified and allege with particularity the demand made, if any,
to obtain action by the board of directors, and either that the demand
was refused or ignored or why the shareholder did not make the
demand. Whether or not a demand for action was made, if the
corporation commences an investigation of the charges made in the
demand or complaint (including an investigation commenced under
subsection (d)), the court may stay any proceeding until the
investigation is completed.
(c) A proceeding commenced under this section may not be
discontinued or settled without the court's approval. If the court
determines that a proposed discontinuance or settlement will
substantially affect the interest of the corporation's shareholders or a
class of shareholders, the court shall direct that notice be given to the
shareholders affected. On termination of the proceeding, the court shall
award costs and attorney's fees to a prevailing party to the extent
required by IC 34-52-1-1. In addition, the court may require the
plaintiff to pay any defendant's other reasonable expenses (including
attorney's fees) incurred in defending the proceeding if it finds that the
proceeding was commenced without reasonable cause.
(d) Unless prohibited by the articles of incorporation, the board of
directors may establish a committee consisting of three (3) or more
disinterested directors or other disinterested persons to determine:
(1) whether the corporation has a legal or equitable right or
remedy; and
(2) whether it is in the best interests of the corporation to pursue
that right or remedy, if any, or to dismiss a proceeding that seeks
to assert that right or remedy on behalf of the corporation.
(e) In making a determination under subsection (d), the committee
is not subject to the direction or control of or termination by the board.
A vacancy on the committee may be filled by the majority of the
remaining members by selection of another disinterested director or
other disinterested person.
(f) If the committee determines that pursuit of a right or remedy
through a derivative proceeding or otherwise is not in the best interests
of the corporation, the merits of that determination shall be presumed
to be conclusive against any shareholder making a demand or bringing
a derivative proceeding with respect to such right or remedy, unless
such shareholder can demonstrate that:
(1) the committee was not disinterested, as described in
subsection (g); or
(2) the committee's determination was not made after an
investigation conducted in good faith.
(g) For purposes of this section, a director or other person is
disinterested if the director or other person:
(1) has not been made a party to a derivative proceeding seeking
to assert the right or remedy in question, or has been made a party
but only on the basis of a frivolous or insubstantial claim or for
the sole purpose of seeking to disqualify the director or other
person from serving on the committee;
(2) is able under the circumstances to render a determination in
the best interests of the corporation; and
(3) is not an officer, employee, or agent of the corporation or of a
related corporation. However, an officer, employee, or agent of
the corporation or a related corporation who meets the standards
of subdivisions (1) through (2) shall be considered disinterested
in any case in which the right or remedy under scrutiny is not
assertable against a director or officer of the corporation or the
related corporation.
(h) For purposes of this section, "shareholder" includes a beneficial
owner whose shares are held in a voting trust or held by a nominee on
the owner's behalf.
(1) reasonable attorney's fees;
(2) court costs; and
(3) other reasonable expenses of litigation;
based on other factors.
(b) In determining whether to award reasonable attorney's fees, court costs, and other reasonable expenses of litigation, the court may consider among other factors
court found that the respondent knowingly or intentionally
violated an order granting or denying rights. and
(2) whether the respondent substantially prevailed and the court
found that the action was frivolous or vexatious.
(1) shall be calculated based on the reasonable and customary hourly rates charged in the county in which the action occurred; and
(2) may include fees for only one (1) attorney, no matter how many attorneys were actually employed by the party.
(b) The term also includes attorneys at law whether employed by the governmental entity as employees or independent contractors and physicians licensed under IC 25-22.5 and optometrists who provide medical or optical care to confined offenders (as defined in IC 11-8-1) within the course of their employment by or contractual relationship with the department of correction. However, the term does not include:
(1) an independent contractor (other than an attorney at law, a
physician, or an optometrist described in this section);
(2) an agent or employee of an independent contractor;
(3) a person appointed by the governor to an honorary advisory or
honorary military position; or
(4) a physician licensed under IC 25-22.5 with regard to a claim
against the physician for an act or omission occurring or allegedly
occurring in the physician's capacity as an employee of a hospital.
(c) For purposes of IC 34-13-3 and IC 34-13-4, the term includes a
person that engages in an act or omission before July 1, 2004, in the
person's capacity as:
(1) a contractor under IC 6-1.1-4-32 (repealed);
(2) an employee acting within the scope of the employee's duties
for a contractor under IC 6-1.1-4-32 (repealed);
(3) a subcontractor of the contractor under IC 6-1.1-4-32
(repealed) that is acting within the scope of the subcontractor's
duties; or
(4) an employee of a subcontractor described in subdivision (3)
that is acting within the scope of the employee's duties.
(b) "Governmental entity", for purposes of section 103(j) of this chapter, means the state or a political subdivision of the state.
the plaintiff is entitled to recover reasonable attorney's fees and costs to answer the motion.
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 21. In any action
brought against a governmental entity in tort, the court may shall allow
attorney's fees as part of the costs to the governmental entity prevailing
as defendant if the court finds that plaintiff:
(1) brought the action on a claim that is frivolous, unreasonable,
or groundless;
(2) continued to litigate the action after plaintiff's claim clearly
became frivolous, unreasonable, or groundless; or
(3) litigated its action in bad faith.
This award of fees does not prevent a governmental entity from
bringing an action against the plaintiff for abuse of process arising in
whole or in part on the same facts, but the defendant may not recover
such attorney's fees twice. as provided in IC 34-52-1-1.
(b) Subject to this section, in any civil action commenced before July 1, 2013, the court may, and in all civil actions commenced after June 30, 2013, the court shall, award reasonable and necessary attorney's fees as part of the cost to the prevailing party, if the court finds that
(1) brought the action or defense on a claim or defense that is frivolous, unreasonable, vexatious, or groundless;
(2) continued to litigate the action or defense after the party's claim or defense clearly became frivolous, unreasonable, vexatious, or groundless; or
(3) litigated the action in bad faith.
(c) The award of fees under subsection (b) does not prevent a prevailing party from bringing an action against another party for abuse of process arising in any part on the same facts. However, the prevailing party may not recover the same attorney's fees twice.
(d) If there are several nonprevailing parties, only the nonprevailing parties that engaged in or joined in the conduct described in subsection (b)(1) through (b)(3) (and, to the extent provided in section 4 of this chapter, any relator, person, or corporation on whose behalf the applicable nonprevailing parties are actual parties) shall be ordered to pay attorney's fees awarded under this subsection. If a party prevailed on some issues and not others, an order to pay attorney's fees under subsection (b) shall be limited to attorney's fees related to issues on which the party did not prevail.
(e) This section supplements any other statute providing for the award of attorney's fees to a prevailing party. If another statute:
(1) permits but does not require an award of attorney's fees or other costs to a prevailing party, the other statute shall be treated as not granting discretion to the court to deny an award of attorney's fees or other costs to a prevailing party under this section, if the court finds that a nonprevailing party engaged in conduct described in subsection (b)(1) through (b)(3); or
(2) prohibits or limits an award of attorney's fees or other costs to a prevailing party, the other statute shall be treated as not prohibiting or limiting an award of attorney's fees or other costs to a prevailing party under this section, if the court finds that a nonprevailing party engaged in conduct described in subsection (b)(1) through (b)(3).
(f) A governmental entity or an employee of a governmental entity acting within the employee's official capacity or under color of law is not liable for attorney's fees awarded under subsection (b).
(g) If this section and a provision of any of the following statutes, as effective June 30, 2013, apply to an award of attorney's fees or other costs for the same or similar conduct in a civil proceeding commenced before July 1, 2013, the applicable following statute and not this section applies to an award of attorney's fees and other costs in the civil proceeding covered by the statute:
IC 4-6-3-6
IC 5-8-1-35
IC 5-11-5.5-6
IC 5-14-1.5-7
IC 5-14-3-9
IC 24-2-3-5
IC 24-4-7-5
IC 26-1-2.1-108
IC 27-1-3.1-17
IC 28-1-5-8.5
IC 31-17-4-3
IC 32-30-6-9.5
IC 34-7-7-8
IC 34-12-3-4
IC 34-13-3-21
IC 34-13-4-4.
