Fox v. Galvin
| Decision Date | 05 October 1978 |
| Docket Number | No. 2-777A260,S-S-S,2-777A260 |
| Citation | 177 Ind.App. 654,381 N.E.2d 103 |
| Parties | David FOX, Dorothy C. Fox andCorporation, Appellants (Defendants below), v. W. Randolph GALVIN, Jr., Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
Peter Obremskey, Parr, Richey, Obremskey & Morton, Lebanon, for appellee.
David Fox (Fox) appeals from the trial court's judgment of $6,500 and attorneys fees of $2,000 in favor of plaintiff, W. Randolph Galvin, Jr. (Galvin) upon his complaint to foreclose a mechanic's lien, claiming the trial court erred in awarding excessive damages, in awarding attorneys fees, and in ordering the lien foreclosed and the real estate sold to satisfy the judgment despite failure of service of process upon co-defendant, Dorothy C. Fox, a joint tenant in the property.
Affirmed in part and reversed in part.
The facts most favorable to the trial court's judgment are:
In 1972, Fox and Galvin entered into an oral contract for renovating the Silver Slipper Saloon in Indianapolis. Galvin was to redesign the saloon, manage and supervise reconstruction, and provide his own labor. For this, he would receive a one-third interest in the real estate and one-third of the profits of the Silver Slipper Saloon. Fox was to provide the funds necessary for remodeling.
From February, 1972, to April, 1973, Galvin remodeled and reconstructed the Silver Slipper. Galvin's total work under the oral contract amounted to approximately 1,400 hours.
On April 6, 1973, Galvin filed two notices of mechanic's lien one addressed to the title owners of the property, Jack G. and Lucille D. Messmer, and the other to Fox, who was purchasing the property on contract. The $6,500 mechanic's lien was for Galvin's work in connection with the saloon.
The Silver Slipper Saloon was destroyed by fire on May 23, 1973. This suit was filed against David Fox, Lucille B. Messner, and Jack G. Messner on August 17, 1973. Summonses were issued and service of process was made on each defendant.
Following the dismissal of the Messners from this action, Galvin amended his complaint on April 9, 1975, to include as defendants Dorothy C. Fox (a joint tenant) and S-S-S Corp. (a corporation formed by Fox, Dorothy C. Fox, and their now-deceased father-husband). The summonses issued to the new parties were not served. Alias summonses for both additional parties were then issued, to be served at The Pink Palace Beauty Salon. The summonses were returned unserved with the following notation:
As to Dorothy C. Fox "Hasn't worked here for 6-8 mos." As to S-S-S Corporation "They've never heard of S-S-S Corp."
At trial, the court found in favor of Galvin and awarded him a $6,500 judgment against Fox for the value of his labor under the oral contract, an attorneys fee of $2,000, and ordered the lien foreclosed and the real estate sold to satisfy the judgment. No evidence was offered as to attorneys fees.
Fox appeals.
Three issues are presented:
As to ISSUE ONE, Fox maintains the value of eight checks should have been subtracted from the damages awarded. Galvin contends these checks were payment for items other than Galvin's services.
As to ISSUE TWO, Fox asserts any award of reasonable attorneys fees must be supported by evidence in the record. Galvin maintains the judge may award reasonable attorneys fees based upon his own experience and knowledge.
As to ISSUE THREE, Fox contends the trial court could not order foreclosure upon co-defendant Dorothy C. Fox's joint tenant property rights without proper service of process. Galvin contends that Fox is not the proper party to raise this issue, and that proper service of process was made.
CONCLUSION The award of damages was not excessive because certain payments by Fox to Galvin were not included as payment to Galvin for his services.
Eight cancelled checks from Fox to Galvin (or his business concern, the Black Curtain Dinner Theater) totaling $1,254 were introduced into evidence. Fox maintains this total should be set off against the $6,500 judgment. In support of this, the appellant's brief cites Fox's testimony that he believed those checks were compensation to Galvin for his services.
However, not to be outdone, the appellee's brief excerpts from the record testimony by Galvin precisely to the contrary. Thus there was conflicting evidence and we will not reweigh this conflicting evidence. Rather we will support the judgment. Kirk v. Harris (1977), Ind.App., 364 N.E.2d 145; Charlie Stuart Oldsmobile, Inc. v. Smith (1976), Ind.App., 357 N.E.2d 247.
CONCLUSION The trial court did not err in awarding $2,000 attorneys fees under Ind.Code 32-8-3-14, 1 despite the lack of the introduction of any evidence on that subject.
In venturing into the propriety of a trial court setting reasonable attorney fees without the benefit of evidence, we enter murky waters. The Indiana cases are conflicting.
Nor is the water clearer elsewhere. The decisions in other jurisdictions indicate no definitive majority view or any discernible trend. Annot., 18 A.L.R.3d 733. Indeed, at least one other state seems to share Indiana's embrangled position. 2
The split in Indiana authority is long standing and the confusion is compounded by the failure of the cases to cite or distinguish cases reaching a contrary result. 3
In Winslow Gas Company v. Plost (1919), 69 Ind.App. 611, 122 N.E. 594, a mechanic's lien action, the Indiana Appellate Court held that evidence as to a reasonable attorneys fee was required before such an award could be made.
The Indiana Supreme Court reached the opposite conclusion in Dunn v. Deitschel (1932), 204 Ind. 269, 169 N.E. 529. In sustaining the trial court, the Supreme Court held a judge was not bound by expert evidence but could apply his own skill in setting the value of attorneys fees. Without citing or distinguishing Winslow, the court stated:
(A) court . . . is itself an expert as to the value of attorney's services, and may apply its own knowledge and professional experience in determining the value of the services rendered. . . .
204 Ind. at 272, 169 N.E. at 530.
Also in 1932, the Supreme Court in In re Davis (1932), 204 Ind. 227, 183 N.E. 547, (involving reasonable attorneys fees for handling an estate) again held that the trial court may set the value of legal services without evidence.
The Indiana Appellate Court in Jackson v. J. A. Franklin and Son (1939), 107 Ind.App. 38, 23 N.E.2d 23, another mechanic's lien case, reversed an award of attorneys fees because of the lack of any evidence on that subject. Dunn v. Deitschel, supra, was distinguished on the grounds that it dealt only with whether the trial court was bound by expert evidence. 4
A year later in Waverly Company v. Moran Electric Service (1940), 108 Ind.App. 75, 26 N.E.2d 55, the Indiana Appellate Court, citing its own Jackson case and ignoring the Supreme Court's 1932 In re Davis decision, concluded that it had held repeatedly that in mechanics' lien cases it was error to include attorneys fees without evidence thereof.
In two out of three more recent Indiana cases the Supreme Court has approved the trial court's action in setting attorneys fees without evidence as to the reasonable value thereof.
In McDaniel v. McDaniel (1964), 245 Ind. 551, 562, 201 N.E.2d 215, 220, it was said:
(T)he reasonableness of attorney fees is . . . a matter regarding which the judge, being a lawyer, May take judicial notice. Therefore, this court will not disturb the trial court's award as to attorney fees, unless there is a clear abuse of discretion. (emphasis supplied)
In a tax assessment case, Sears, Roebuck and Company v. State (1967), 248 Ind. 169, 225 N.E.2d 175, the Supreme Court determined that a lack of evidence was fatal to an award of attorneys fees. However, the opinion failed to cite or discuss any of its prior contrary holdings.
The most recent statement is In re Lockyear (1974), 261 Ind. 448, 305 N.E.2d 440, a disciplinary action in which it was recognized that:
(T)he holding of the courts in Indiana (is) that a judge has the power to make an award of attorneys fees (where proper) without any evidence whatsoever by merely relying upon his own knowledge of what a reasonable attorney's fee should be.
261 Ind. at 459, 305 N.E.2d at 446.
The Indiana Court of Appeals has not followed the early Appellate Court cases. But rather it has consistently adhered to the rule of McDaniel v. McDaniel, supra, and In re Lockyear, supra. See Kizer v. Davis (1977), Ind.App., 369 N.E.2d 439 (); Geberin v. Geberin (1977), Ind.App., 360 N.E.2d 41 (divorce action); Roe v. Doe (1972), 154 Ind.App. 203, 289 N.E.2d 528 (paternity action); Hardiman v. Hardiman (1972), 152 Ind.App. 675, 284 N.E.2d 820 (divorce action); Marshall v. Russell R. Ewin, Inc. (1972), 152 Ind.App. 171, 282 N.E.2d 841 (mortgage foreclosure).
Two reasons are offered for allowing an award of attorneys fees to be made despite a lack of evidence. One relates to the qualities a judge possesses, while the other relates to the nature of his position.
First, in dealing with attorneys fees, the trial court judge is what the Louisiana Court of Appeals termed "an expert in his own right." 5 Indiana courts, as well as those in other jurisdictions, have recognized the obvious that judges have an expertise in the legal field. This stems from their status as lawyers, McDaniel v....
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