Cavallo v. Allied Physicians of Michiana, LLC

Decision Date20 August 2015
Docket NumberNo. 71A05–1406–PL–285.,71A05–1406–PL–285.
Citation42 N.E.3d 995
PartiesUthman CAVALLO, M.D., Appellant–Defendant, v. ALLIED PHYSICIANS OF MICHIANA, LLC, Appellee–Plaintiff.
CourtIndiana Appellate Court

Scott H. Duerring, South Bend, IN, Attorney for Appellant.

Mark D. Boveri, John H. Lloyd, Krieg DeVault LLP, Mishawaka, IN, Stacy Walton Long, Krieg DeVault LLP, Indianapolis, IN, Attorneys for Appellee.

PYLE, Judge.

Statement of the Case

[1] Appellant/Defendant, Uthman Cavallo, M.D. (Cavallo), appeals the trial court's order denying his request for a jury determination of the amount of attorney fees he owed Appellee/Plaintiff, Allied Physicians of Michiana, LLC (Allied), after Allied prevailed in a breach of contract claim against Cavallo. Cavallo and Allied were parties to an employment contract, and Allied filed a complaint against Cavallo alleging that he had breached the contract. Cavallo filed a counter-claim and a jury demand, alleging in the counter-claim that Allied, instead, had breached the contract. The trial court conducted a jury trial, and the jury found that Cavallo had breached the contract.

[2] Subsequently, after the trial court entered judgment against Cavallo, Allied filed a petition requesting attorney fees, which was based on a fee-shifting provision in the contract. At a hearing regarding the petition, the trial court concluded that Cavallo's pre-trial jury demand applied to the post-trial petition, and the court established a deadline for the parties to inform it whether they would like to empanel a new jury to consider the issue. Cavallo filed a request for a jury trial on the issue before the deadline, and Allied filed an objection to Cavallo's jury request after the deadline. Thereafter, the trial court denied the jury request, concluding that Cavallo did not have a right to a jury trial, and awarded Allied $89,706.11 in attorney fees.

[3] On appeal, Cavallo argues that: (1) Allied's petition for attorney fees was barred by res judicata and waiver because Allied failed to present evidence on the issue at the trial on the underlying breach of contract claim; (2) the trial court erred when it denied Cavallo's request for a jury trial to determine reasonable attorney fees because he had a right to a jury trial; and (3) the trial court erred in awarding Allied attorney fees because it did not hold a hearing to determine the reasonableness of the amount awarded and because the award was unreasonable. Also on appeal, Allied requests appellate attorney fees.

[4] We conclude that Allied's claim was not barred by res judicata or waiver because the issue of attorney fees could not necessarily have been raised during trial, such that res judicata or waiver should apply. We also conclude that the trial court did not err when it denied Cavallo a jury trial because Cavallo did not have a right to a jury trial on the reasonableness of attorney fees; nor did the trial court abuse its discretion in determining a reasonable amount of attorney fees to award to Allied. Finally, because it is undisputed that the contract between Cavallo and Allied provided for recovery of attorney fees, we grant Allied's request for appellate attorney fees and remand for further proceedings so that the trial court may determine a reasonable amount.

We affirm and remand for further proceedings.

Issues
[5] 1. Whether Allied's claim for attorney fees was barred by res judicata or waiver.
2. Whether the trial court erred when it denied Cavallo's request to empanel a jury to decide a reasonable amount of attorney fees.
3. Whether the trial court abused its discretion in awarding Allied attorney fees.
4. Whether Allied may recover appellate attorney fees.
Facts

[6] Cavallo is a licensed medical doctor, and Allied is an Indiana limited liability company that provides professional medical and surgical services. Cavallo worked with a group called OB/GYN Associates of Northern America (“OB/GYN”) from 2001 until late 2009, at which time Allied purchased OB/GYN's assets and entered into an employment agreement with Cavallo (“the Contract”). The Contract contained a covenant not to compete, including a fee-shifting provision applicable in the event that Allied prevailed in enforcing the covenant not to compete.1

[7] On March 16, 2011, Allied filed a complaint against Cavallo, alleging that he had violated the covenant not to compete by opening a competing medical practice within twenty miles of Allied's practice. The company requested damages, including the costs of the action and attorney fees, as well as preliminary and permanent injunctions prohibiting Cavallo from practicing at the competing medical practice. Cavallo filed a counterclaim, arguing that he had developed his competing medical practice with Allied's approval and help and that Allied had breached the Contract when it ejected him from his office, sent him a cease and desist letter, and filed its complaint. Cavallo also demanded a jury trial.

[8] From September 24–26, 2013, the trial court held a jury trial. At the conclusion of the trial, the jury found in favor of Allied. It awarded the company a judgment of $174,916.80, which did not include an amount for attorney fees because Allied had not introduced any evidence or argument regarding its attorney fees at trial.2 Subsequently, on October 16, 2013, Allied petitioned for an award of attorney fees totaling $89,706.11. Cavallo objected to the petition, arguing that the fee amount was unreasonable and that the request was untimely because Allied should have tried the issue of attorney fees before the jury.

[9] On December 18, 2013, the trial court conducted a hearing on the fee petition. The court found that, because the Contract specified that Allied could seek attorney fees in the event that it “prevailed” at trial, the cause of action for attorney fees did not necessarily arise until after the jury trial. (Tr. 4 ). Thus, the trial court concluded that Allied had not waived its attorney fee claim. However, the trial court also held that Cavallo's pre-trial jury demand still applied to the fee claim. As a result, the trial court allowed the parties until January 15, 2014 to decide whether they desired a second jury to be empaneled to determine a reasonable amount of attorney fees.

[10] On January 14, 2014, Cavallo filed a response to the trial court's ruling, in which he requested a jury trial on the attorney fees. Allied filed an objection to Cavallo's jury request on February 3, 2014. It argued that the trial court should deny the jury request because: (1) Cavallo's previous jury demand applied only to his counterclaim rather than to Allied's original complaint; and (2) Cavallo was not entitled to a jury on the reasonableness of attorney fees under Indiana Trial Rule 38 because the attorney fee claim was an equitable issue that did not trigger a right to a jury trial.

[11] On May 21, 2014, the trial court entered an order denying Cavallo's jury request and awarding Allied the $89,706.11 in attorney fees it had requested. The trial court found, as Allied had argued, that Cavallo was not entitled to a jury trial on the reasonableness of attorney fees under Trial Rule 38. The trial court also concluded that the amount of Allied's fee request was reasonable based on the prevailing rate of legal services in the geographic location, the types of legal issues presented, the reputation and experience of counsel, the time necessary to prepare for a multi-day jury trial involving professional experts, and the types of expenses incurred. Cavallo now appeals.

Decision

[12] On appeal, Cavallo raises three issues: (1) whether Allied's claim for attorney fees was barred by res judicata or waiver; (2) whether the trial court erred when it denied Cavallo's request for a jury; and (3) whether the trial court abused its discretion in awarding Allied attorney fees. In response, Allied raises a fourth issue: whether we should award Allied appellate attorney fees. We will address each of these issues in turn.

1. Res Judicata and Waiver

[13] Cavallo contends that Allied's fee claim was barred by the doctrine of res judicata, specifically claim preclusion, because it was “firmly interlaced with the breach of contract claim” such that Allied should have presented evidence on the claim at trial.3 (Cavallo's Br. 7). He asserts that, because Allied had an opportunity to adjudicate the issue at trial—and, indeed, raised the issue in its complaint—but failed to present any evidence on the fees, it could not petition for the fees after the trial court entered the final judgment. In response, Allied argues that its petition was timely, and therefore not barred by res judicata, because its request for fees was not ripe until it became a prevailing party. Allied notes that requesting attorney fees post-judgment is a widely-accepted procedure.

[14] Preliminarily, we must note that Cavallo objected to Allied's petition on grounds of waiver, not res judicata, below and therefore has waived any res judicata argument on appeal. Boatner v. State, 934 N.E.2d 184, 187 (Ind.Ct.App.2010) (stating that a party may not object at trial on one ground and seek reversal on appeal based on another ground and that doing so results in waiver). Waiver notwithstanding, we do not agree that Allied was barred from requesting attorney fees post-judgment on the basis of res judicata.

[15] The “doctrine of res judicata prevents the repetitious litigation of disputes that are essentially the same.” Kelly v. Kravec, 999 N.E.2d 433, 441 (Ind.Ct.App.2013) (quoting Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 703 (Ind.Ct.App.2005), trans. denied ). It is divided into two branches: claim preclusion, which Cavallo raises here, and issue preclusion. Dev. Serv. Alt., Inc. v. Ind. Family and Soc. Serv. Admin., 915 N.E.2d 169, 179 (Ind.Ct.App.2009), trans. denied. Claim preclusion is relevant when a ‘final judgment’ on the merits has been rendered in a prior action, and it acts to bar a subsequent action on the...

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