Thursday, September 18, 2014
Ind. Decisions - Tax Court decides one today
In Nick Popovich v. Indiana Department of State Revenue, a 15-page opinion in a lawsuit initiated in 2010 in which there have been several rulings (here is the docket), Judge Wentworth writes:
This matter concerns Nick Popovich’s motion for default judgment, costs, and attorney’s fees as sanctions for the Indiana Department of State Revenue’s purported spoliation of evidence and discovery abuses. The Court denies Popovich’s motion. * * *
As the Court has noted previously, the discovery process in this case has been acrimonious. See Popovich v. Indiana Dep’t of State Revenue (Popovich II), 7 N.E.3d 419, 423 (Ind. Tax Ct. 2014), reh’g denied, 13 N.E.3d 954 (Popovich III) (Ind. Tax Ct. 2014). Indeed, the parties have used the discovery process not as a mechanism to unearth all relevant facts and evidence, but rather as an opportunity for gamesmanship, which engendered secrecy, incivility, and distrust. While the Court does not condone this behavior, it cannot infer from the facts before it that the Department intentionally or even negligently destroyed, mutilated, or altered Popovich’s 2003 transmittal envelope. Nor can the Court infer from the facts that the Department conspired to supplant Popovich’s 2003 transmittal envelope with his ex-wife’s transmittal envelope. Accordingly, Popovich has not shown that the Department’s discovery misdeeds warrant the entry of a default judgment and an award of all litigation expenses, including attorney’s fees.
Conclusion. For the above stated reasons, the Court DENIES Popovich’s Motion for Trial Rule 37 Sanctions, Including Judgment and Fees. The Court will schedule, by separate order, an Indiana Trial Rule 37(A)(4) hearing on the propriety of expenses given its resolution of Popovich v. Indiana Department of State Revenue (Popovich I), 7 N.E.3d 406 (Ind. Tax Ct. 2014), Popovich II, and Popovich III.
Posted by Marcia Oddi on September 18, 2014 02:59 PM
Posted to Ind. Tax Ct. Decisions