Posey v. Lafayette Bank and Trust Co.

• Decision Date: 25 November 1991
• Docket Number: No. 23A04-9006-CV-292,23A04-9006-CV-292
• Citation: 583 N.E.2d 149
• Parties: In the Matter of the Guardianship of Pearl C. POSEY, Adult Incompetent, Raymond Harkrider, Raymond Harkrider as Executor of the will of Georgia Cory, Deceased, Betty Rogers and June Nelson, Appellants, v. LAFAYETTE BANK AND TRUST COMPANY, Guardian of the Estate, and Judge Floyd Wilcox, Guardian of the Person, Appellees.
• Court: Indiana Appellate Court

Page 149

583 N.E.2d 149

In the Matter of the Guardianship of Pearl C. POSEY, Adult

Incompetent, Raymond Harkrider, Raymond Harkrider as Executor of the will of Georgia Cory, Deceased, Betty Rogers and June Nelson, Appellants, v. LAFAYETTE BANK AND TRUST COMPANY, Guardian of the Estate, and Judge Floyd Wilcox, Guardian of the Person, Appellees.

No. 23A04-9006-CV-292.

Court of Appeals of Indiana,

Fourth District.

Nov. 25, 1991.

Rehearing Denied Jan. 15, 1992.

Douglas R. Brown, Stewart & Irwin, Indianapolis, for appellants.

Stephen R. Pennell, Deborah B. Noah, Stuart & Branigin, Lafayette, for appellees.

MILLER, Judge.

The family of the late Pearl Posey (Harkrider) ¹ appeals from the trial court's order determining the amount of appellate attorney's fees and costs ($14,332.54) payable to Pearl's guardian, Floyd Wilcox, and his attorneys, Stuart & Branigin (Attorneys), pursuant to this court's remand order in the second appeal in this action, Matter of the Guardianship of Posey (1988), Ind.App., 532 N.E.2d 9, trans. den. ² Harkrider We affirm the trial court, but decline to impose additional sanctions.

claims 1) the trial court's award of fees was excessive and should have been limited to only ten per cent of the attorney's fees awarded on remand from the first appeal, Posey v. Lafayette Bank & Trust Co. (1987), Ind., 512 N.E.2d 155, aff'g (1986), Ind.App., 513 N.E.2d 674, cert. den. Harkrider v. Lafayette Bank & Trust Co. (1988), 485 U.S. 988, 108 S.Ct. 1292, 99 L.Ed.2d 502; and 2) the evidence was insufficient to support the amount of the fees awarded by the trial court. Additionally, both Harkrider and Attorneys request appellate attorney fees.

DECISION

I. Trial Court's Attorney Fee Award

Harkrider contends the trial court erred in its execution of the remand order because Ind.Appellate Rule 15(G) requires an appellate court to directly impose an appropriate sanction amount and remand to a trial court only for execution. We find this argument without merit. Our supreme court has implicitly expressed approval for the procedure of remanding to the trial court for determining a reasonable amount of attorney's fees. Posey, Ind., 512 N.E.2d 155.

Next, Harkrider contends that App.R. 15(G) expressly limits the amount of any sanction award to ten per cent of any money judgment from which the appeal was taken. The rule reads (emphasis added):

"(G) Damages Against Appellant. If the court on appeal affirms the judgment, damages may be assessed in favor of the appellee not exceeding ten per cent (10%) upon the judgment, in money judgments, and in other cases in the discretion of the court; and the court shall remand such cause for execution."

Harkrider argues that because the rule is punitive in nature, it must be strictly construed. In this case, Harkrider claims the earlier award of attorney's fees--following our supreme court's remand order and this court's affirmance--became a money judgment; therefore, when this court remanded for imposition of additional sanctions, the trial court exceeded its jurisdiction and abused its discretion by awarding fees and expenses in excess of ten per cent of the previously awarded appellate attorney's fees.

Attorneys contend the fees awarded in the second appeal are not a "money judgment" as that term is used in the rule, but sanctions assessed by this court to reimburse the appellees for expenses in defense of a frivolous appeal and to penalize the appellants for unreasonable and egregious conduct. They further argue that the remand order implicitly mandates the trial court to award reasonable fees and did not limit the trial court to ten per cent of the previous attorney fee award. We agree.

The trial court followed the mandate of this court to determine an "appropriate" award of attorney's fees. Posey, Ind.App., 532 N.E.2d at 15. Even if there is merit to Harkrider's contention that appellate attorney's fees should be limited to ten per cent of the amount of the existing "judgment" for appellate fees, the "law of the case" doctrine prevents this court from redetermining issues which were brought or could have been brought in an earlier appeal between the same parties. Posey, Ind.App., 513 N.E.2d 674; citing Fair Share Organization v. Mitnick (1964), 245 Ind. 324, 327, 198 N.E.2d 765, 766, cert. den. (1964) 379 U.S. 843, 85 S.Ct. 82, 13 L.Ed.2d 48. This court was fully aware of the first award of appellate fees when it determined that attorneys' fees were again warranted and remanded for the trial court to determine an "appropriate" amount. There would have been no reason to remand to the trial court to determine the amount of fees if the amount were limited to ten per cent of the previous appellate fee award.

Finally, Harkrider challenges the sufficiency of the evidence on the reasonableness of the amount of attorney's fees. He claims there must be some substantive evidence on each factor enumerated in our Professional Conduct Rule 1.5. ³ Specifically, he alleges that there was no evidence introduced on the limitations placed upon Attorneys' ability to accept other employment, the length of the relationship with their client, or the reputation of the firm.

An award of attorney's fees lies within the trial court's discretion, and we will not reweigh the evidence, nor disturb the trial court's decision absent an abuse of discretion. Posey, Ind.App., 532 N.E.2d at 13. Where the amount of the fee is not inconsequential, there must be objective evidence of the nature of the legal services and the reasonableness of the fee. Id.; Seibert v. Mock (1987), Ind.App., 510 N.E.2d 1373. Although this court has held that Prof.Cond.R. 1.5 provides useful guidelines in determining the reasonableness of an award of attorney's fees, we have never held that evidence is required on each factor in the rule. See Seibert, supra, (evidence sufficient to support the trial court's award of attorney's fees despite appellant's claim there was no evidence of the skill needed to perform the services and the difficulty of the trial issues), and Captain & Company, Inc. v. Stenberg (1987), Ind.App., 505 N.E.2d 88, (evidence sufficient despite allegations that no evidence was presented as to the legal skill required, difficulty of the issues or time limitations). Thus, these cases demonstrate that there must be evidence supporting a trial court's award of attorney's fees, but there need not be evidence presented on each factor suggested in the guidelines.

Harkrider also contends the evidence presented was insufficient. Harkrider's argument is an attempt to have this court reweigh the evidence. We also observe that the evidence presented here is similar to that presented and found sufficient in Posey, Ind.App., 532 N.E.2d at 13-14. As in the last appeal, the evidence here is sufficient to support the trial court's award of attorney's fees.

In this case, Attorneys filed a fee petition with the trial court before the hearing. The petition included the sworn affidavit of Stephen R. Pennell, a partner in the firm and the lead attorney throughout all the appeals involving Pearl's guardianship. The petition and itemized statement for legal services was incorporated by reference in Pennell's affidavit. Pennell testified in court that 1) the affidavit and statements reflected to the tenth of the hour the services performed by the individual attorneys and paralegals who were involved in the case in defense of the appeal; 2) the fee petitions covered three calendar years from 1988 through 1990; 3) there were different billing charges for the various attorneys who worked on the case (senior associate time was billed at $90 per hour, associate time billed at $85 per hour, paralegal time billed at $45 per hour, and his time as a partner billed at $100 per hour in 1988, $105 per hour in 1989 and $115 per hour in 1990); 4) the total number of hours expended were directly connected to the appeal (total 145.8 hours); 5) the appeal was less complicated than the first appeal and they had managed to streamline issues to reduce the amount of time charged; and 6) the hourly rate charged was customary for services of this nature and comparable with those charged by attorneys with comparable skill and experience. Harkrider cross-examined Pennell and challenged him on whether particular items contained in exhibits attached to the fee petition were connected to the appeal. ⁴ However, Harkrider did not offer any evidence as to reasonable attorney's fees or any evidence to contradict Pennell.

We do not reweigh evidence and cannot find the trial court's determination of attorney's fees in this case is clearly erroneous; therefore, we affirm the trial court's award.

II. Appellate Attorney's Fees

Both Harkrider and Attorneys request appellate attorney's fees. First, Harkrider requests attorney's fees under App.R. 15(G), claiming that misstatements of fact and other deficiencies in the Appellees' Brief demonstrate bad faith on this appeal meriting sanctions. We first observe that App.R. 15(G) authorizes this court to exercise its discretion to award damage in "favor of the appellee," when this court affirms the trial court's judgment. We are affirming the judgment of the trial court, but Harkrider is the appellant, not appellee. Furthermore, we do not agree with Harkrider that Attorneys have misstated facts relevant to the issues on review in this case, ⁵ and minor errors in briefing do not warrant an award of appellate attorney's fees. Warner v. Warner (1989), Ind.App., 534 N.E.2d 752, (declining to award appellate attorney's fees merely because appellant's brief did not fully comply with appellate rules).

Attorneys claim that Harkrider has once again advanced such a frivolous and bad faith appeal--demonstrating a repeated pattern of abuse and harassment which serves no legitimate purpose--that sanctions under App.R. 15(G) are merited. We disagree.

Appellate sanctions are an extreme measure and "should not be imposed...