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Wallace v. Rosen - 765 N.E.2d 192 (Ind. Ct. App. 2002)

Rule:

Bad faith on appeal may be classified as "substantive" or "procedural." Substantive bad faith implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Procedural bad faith is present when a party flagrantly disregards the form and content requirements of the Indiana Rules of Appellate Procedure, omits and misstates relevant facts appearing in the record, and files briefs appearing to have been written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court.

Facts:

The mother came to the school to deliver homework to her daughter. The mother was recovering from foot surgery. She was near the top of the stairs, talking with her daughter and friend, when the fire alarm sounded. The teacher contended that the mother continued up the stairs after the alarm went off, stopped to talk, and blocked the students' exit, thus, she tapped her back to get her attention and asked her to move it because there is a fire drill. The mother sued for allegedly being pushed by the teacher down the stairs. At the close of the trial, the mother tendered an instruction to the jury concerning civil battery. The trial court refused the instruction. The appellate court found no abuse of discretion, as a certain amount of personal contact was inevitable and had to be accepted in a crowded world. Appellee now seeks to recover attorneys fees for this appeal, alleging that the mother’s appeal is frivolous.

Issue:

Whether a frivolous appeal automatically entitles the appellee to attorneys fees.

Answer:

No.

Conclusion:

Bad faith on appeal may be classified as "substantive" or "procedural." Substantive bad faith implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Procedural bad faith is present when a party flagrantly disregards the form and content requirements of the Indiana Rules of Appellate Procedure, omits and misstates relevant facts appearing in the record, and files briefs appearing to have been written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court. In this case the appeal possessed sufficient merit to withstand a request for fees.

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