Pigg v. State Of Ind.
| Decision Date | 14 June 2010 |
| Docket Number | No. 52A02-0907-CV-666.,52A02-0907-CV-666. |
| Citation | 929 N.E.2d 799 |
| Parties | Steve PIGG, Appellant-Petitioner,v.STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Steve Pigg, Carlisle, IN, Appellant Pro Se.
J. Richard Kiefer, Bingham McHale LLP, Indianapolis, IN, Attorney for Appellee.
Appellant-Petitioner, Steve Pigg (Pigg), appeals the trial court's denial of his motion to compel the delivery of money from his attorney pursuant to Ind.Code § 33-21-1-9.1
We affirm.
Pigg raises two issues for our review, which we restate as:
(1) Whether the trial court abused its discretion by not holding an evidentiary hearing; and
(2) Whether the trial court erred by denying Pigg's motion to compel the delivery of money.
In 1991, Pigg pled guilty to the murders of Jason Brown and Nanette Scott, and was sentenced to an aggregate sentence of eighty years. Pigg's trial counsel, Duge Butler (Butler), referred Pigg to J. Richard Kiefer (Kiefer), an attorney, to consider his options for appeal or post-conviction remedies. On January 22, 1992, Pigg's mother paid a $5,000 retainer to Kiefer and Kiefer agreed to work on Pigg's case at an hourly rate of $175. Kiefer filed a notice of appeal with the trial court and requested an extension of time from the Indiana Court of Appeals, preserving Pigg's opportunity to appeal and allowing Kiefer time to obtain and review the transcript of proceedings and meet with Pigg. On May 22, 1992, Kiefer met with Pigg to discuss the possibility of an appeal challenging the trial court's imposition of a fine 2 that was not provided for in Pigg's plea agreement. By letter on June 9, 1992, Kiefer recommended that Pigg not pursue an appeal or post-conviction relief seeking to undo Pigg's guilty plea because of the likelihood that Pigg would be convicted of both murders if he went to trial and potentially receive a greater sentence. Further, Kiefer explained to Pigg that a large portion of his money would be exhausted in a post-conviction proceeding leaving Pigg with low resources to hire counsel for a trial. Ultimately, Kiefer advised that Pigg wait approximately five years, accomplish self improvement goals while incarcerated, and then pursue a modification of his sentence.
On August 14, 1992, Kiefer sent Pigg another letter acknowledging Pigg's desire to undo his guilty plea, and enclosed an excerpt from a recent appellate decision. Kiefer repeated his prior advice and informed Pigg that if he wished to pursue post-conviction relief at that time, Kiefer would not represent Pigg in that endeavor.
On December 28, 2007, over fifteen years later, Pigg sent a letter to Kiefer requesting the return of the retainer which his mother had paid to Kiefer. On January 17, 2008, Kiefer sent Pigg a letter in response stating that Pigg's demand for a return of funds was “both unwarranted and untimely.” (Appellant's App. p. 12). On January 31, 2008, Pigg filed a motion to compel Kiefer to return the unearned portion of the $5,000 retainer in Miami Circuit Court under the cause number associated with his convictions. On February 4, 2008, the trial court sua sponte dismissed the motion to compel stating that it did not have “subject matter jurisdiction to proceed under a criminal litigation caption in connection with a collection dispute.” (Appellant's App. p. 14). Pigg appealed, and on March 11, 2009, we issued a memorandum decision concluding that Pigg had made a prima facie showing that the Miami Circuit Court had subject matter jurisdiction over his motion. Pigg v. State, No. 52A02-0811-CV-1053, slip op. at 5, 2009 WL 637476 (Ind.Ct.App., March 11, 2009).
On March 16, 2009, the trial court issued an Order for trial by affidavit and set a schedule for submission of documents by the parties. On April 14, 2009, Pigg submitted documents and affidavits advancing his claim. On May 4, 2009, Kiefer responded and informed the trial court that he had located Pigg's legal file, but not his billing records and documentation of the number of hours he had worked on Pigg's case which would have been maintained in a separate file. However, Kiefer estimated from his review of Pigg's legal file that the amount of time he had worked on Pigg's case, and the related expenses, would have exceeded the $5,000 retainer paid on Pigg's behalf. Therefore, “it was likely that [Kiefer] was actually owed additional legal fees from [ ] Pigg or his mother but [Kiefer] did not charge [ ] Pigg or his mother for those legal fees.” (Appellant's App. p. 265). On June 1, 2009, the trial court issued an Order denying Pigg's request for reimbursement of money, finding in pertinent part that Kiefer had “reasonably documented his actions on behalf of [Pigg], particularly in view of [Pigg's] dilatory failure to raise the issue of reimbursement until January 31, 2008,” and that based upon the documentation, Pigg's legal fees likely exceeded the retainer fee of $5,000. (Appellant's App. p. 351).
Pigg now appeals. Additional facts will be provided as necessary.
Pigg contends that the trial court abused its discretion by not holding an evidentiary hearing. Specifically, Pigg argues that Indiana law requires an evidentiary hearing to consider motions to compel the delivery of money, and that a hearing would have better permitted him to develop his claims.
The statute which gives an opportunity for clients to submit a motion for reimbursement from their attorneys to a court is Indiana Code section 33-43-1-9, which provides:
If, on request, an attorney refuses to deliver over money or papers to a person from whom or for whom the attorney has received them, in the course of the attorney's professional employment, the attorney may be required, after reasonable notice, on motion of any party aggrieved, by an order of the court in which an action, if any, was prosecuted or if an action was not prosecuted, by the order of any court of record, to deliver the money or papers within a specified time, or show cause why the attorney should not be punished for contempt.
Similarly, Indiana's rules governing the professional conduct of attorneys provides:
Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.
Indiana Professional Conduct Rule 1.16(d).
Pigg cites to Smith v. State, 426 N.E.2d 402 (Ind.1981), to support his claim that the trial court should have held a hearing. Smith was tried and convicted in Shelby Circuit Court. Id. at 403. After his sentencing, he contacted his attorney by letter requesting all documents from his case. Id. The attorney did not respond, so Smith filed a motion for the trial court to order his attorney to deliver the documents. Id. The trial court did not act on the motion for two months, but then, on the day that Smith inquired about the motion, the trial court denied Smith's motion. Id. Our supreme court held that the denial of a motion for an attorney to deliver money of paper pursuant to former Indiana Code section 34-1-60-10 () was a final appealable order. Id. at 404. The Smith court remanded for the trial court to hold a hearing and then rule on the motion. Id.
Pigg also relies on Ferguson v. State, 773 N.E.2d 877 (Ind.Ct.App.2002). Ferguson had been convicted of attempted rape and attempted murder, and his sentence was enhanced due to him being an habitual offender in 1980. Id. at 878. In 1994, the trial court granted Ferguson's motion to correct erroneous sentence, removed the habitual offender enhancement, and reduced Ferguson's sentence by thirty years. Id. Thereafter, Ferguson's brother paid $1,500 to retain an attorney to assist Ferguson in his quest to receive further relief. Id. at 879. On January 24, 2002, Ferguson wrote the attorney asking for the return of the unearned portion of the retainer. Id. The attorney refused, contending that he had performed the review which Ferguson hired the attorney to conduct, but had concluded that there was not “the slightest chance that the court would grant a 2nd PCR.” Id. Ferguson filed a motion to compel the attorney to return money pursuant to Indiana Code section 33-21-1-9, but the trial court denied that motion the day after it was filed without holding a hearing. Id. at 880. We held that the trial court lacked the discretion to deny Ferguson's request for the return of the unearned portion of the retainer. Id. Furthermore, we stated that “upon remand a hearing will be necessary.” Id. at 881. We explained that “a hearing would aid the trial court in determining what portion of the retainer fee, if any, the defendant is entitled to.” Id.
Indiana Code section 33-43-1-9 does not state that a hearing is required, or how evidence may be developed. However, Pigg is correct that both Smith and Ferguson remanded so that hearings could be held. That being said, neither opinion has instructed how such a hearing is to take place, or whether a trial by affidavit would satisfy the requirement for a hearing. Moreover, both Smith and Ferguson involved situations where the trial court's dismissed the claims without any consideration of evidence, a claim which Pigg cannot make here.
While neither the Smith court nor the Ferguson court made explicit reference to notions of due process, we must note the undeniable reality that each court ordered a hearing upon remand because Smith and Ferguson had not received a full and fair opportunity to present their claims- i.e. due process. Patently, Indiana Code section 33-43-1-9 protects the property rights of clients to...
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