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Court Affirms Sanctions Against Lawyer for Attorney's Fee 'Stunt'

By William Vogeler, Esq. | Last updated on

It's really not necessary to read the tea leaves in court decisions.

A form of divination, tasseography is the practice of telling a person's fortune by reading patterns in tea leaves. It is wholly baloney, yet even lawyers try to read things into the leaves of court decisions all the time.

In Bell v. Vacuforce, the U.S. Seventh Circuit Court of Appeals was quite clear about the lawyers' positions in the case. The judges called out one lawyer for an attorney's fee "stunt," and chided the other lawyer, too.

Frivolous Motion

Attorney Paul Overhuaser settled a copyright dispute for his client over a photo of the downtown Indianapolis skyline. Opposing counsel Richard Bell filed the lawsuit, but dismissed it with prejudice in exchange for $7,000.

After the settlement, Overhuaser filed a motion for attorney's fees as the prevailing party. The trial judge said it was "frivolous and misleading," and denied the motion.

The judge sanctioned Overhauser $500, and ordered him to pay Bell's fees. Overhauser appealed, but the 7th Circuit affirmed and left nothing to read between the lines.

"We are confident that if Bell had had any idea that Overhauser was going to pull this stunt, he would not have been willing to dismiss the case voluntarily," Judge David Hamilton wrote for the appeals court.

Prevailing Party

Overhauser argued under 17 U.S.C. Section 505 that his client was the prevailing party because the case was dismissed with prejudice. But the appeals panel rejected the argument that a party can "prevail" under a fee-shifting statute by paying a settlement and obtaining a dismissal with prejudice.

The panel was also disappointed with the opposing counsel, who asked the court to dismiss the appeal because Overhauser mislabeled the appellant in the caption of his brief.

"Please," the judges said in a footnote. "In an attorney's appeal of a sanction order, it can be confusing how best to set up the caption."

Hamilton said it is not always done correctly at first by courts or lawyers.

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