Richard A. Clem v. Paul J. Watts , 2015 Ind. App. LEXIS 96 ( 2015 )

Feb 18 2015, 9:28 am
ATTORNEY FOR APPELLANT APPELLEE PRO SE
Mark Small Paul J. Watts
Indianapolis, Indiana Spencer, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard A. Clem, February 18, 2015
Appellant-Defendant, Court of Appeals Cause No. 60A05-
1406-PL-297
v. Appeal from the Owen Circuit Court.
The Honorable Dena Martin, Special
Judge.
Paul J. Watts, Cause No. 60C01-1312-PL-567
Appellee-Plaintiff.
Sharpnack, Senior Judge
Statement of the Case
[1] Attorney Richard Clem appeals the trial court’s denial of his summary
judgment motion and the grant of attorney Paul Watts’ summary judgment
motion following Watts’ complaint seeking judgment against Clem for attorney
fees in a dissolution case.
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[2] We reverse and remand with instructions for the trial court to enter summary
judgment in favor of Clem.
Issue
[3] The sole issue is one of statutory interpretation and asks us to determine
whether pursuant to Indiana Code section 33-43-4-2 (2004) an attorney fee lien
is valid if the intention to hold a lien is filed before judgment is rendered in the
case.
Facts and Procedural History
[4] The dispositive facts are undisputed. In April 2011, Wife retained Watts to
represent her in a dissolution proceeding in Hamilton County. Fourteen
months later, in June 2012, Wife discharged Watts. Watts withdrew his
appearance in July 2012. On September 6, 2012, Watts filed a Notice of
Attorney Fee Lien in the Hamilton Circuit Court wherein he “enter[ed] his
intention . . . to hold a lien pursuant to Indiana Code § 33-43-4-1 on all money
and property awarded to [Wife] . . . .” Appellant’s App. p. 15. The Notice
further provided that the lien was in the amount of $5,649.48.
[5] In September 2013, the Hamilton Circuit Court issued a dissolution decree that
directed Clem, who was Husband’s counsel, to make a $29,749.46 distribution
payment to Wife using funds provided by Husband. Clem distributed the
money to Wife without paying Watts the value of the lien. Watts responded by
filing a complaint against Clem and Wife requesting judgment in the sum of
$5,649.48.
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[6] Clem filed a Motion for Summary Judgment wherein he argued that Watts’ lien
was not valid because Watts filed the lien before the trial court’s entry of
judgment in the dissolution case. According to Clem, Indiana Code section 33-
43-4-1 requires an attorney to file a lien not later than sixty days after the
judgment is rendered. Watts also filed a Motion for Summary Judgment
wherein he argued the statutory requirement that the notice of intention to hold
a lien be filed not later than 60 days after the judgment is entered does not
preclude a notice of lien from being filed before the judgment is entered creating
an effective lien.
[7] The trial court denied Clem’s summary judgment motion and granted Watts’
motion. Clem appeals the denial of his motion and the grant of Watts’.
Discussion and Decision
[8] A party is entitled to summary judgment upon demonstrating the absence of
any genuine issue of fact as to a determinative issue unless the nonmoving party
comes forward with contrary evidence showing an issue of fact for trial. Dugan
v. Mittal Steel USA, Inc., 929 N.E.2d 184, 185-86 (Ind. 2010).
[9] Our review on appeal from summary judgment is de novo. Hughley v. State, 15
N.E.3d 1000, 1003 (Ind. 2014). On appeal, our task is the same as the trial
court’s. Id. We must determine whether the moving party has shown from the
designated evidentiary matter that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law. Id.; see
also Ind. Trial Rule 56. We construe all facts and reasonable inferences in favor
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of the nonmoving party to ensure that it is not improperly denied its day in
court. Dugan, 929 N.E.2d at 186. The appellant has the burden to persuade us
that the trial court made the wrong decision. Rosi v. Bus. Furniture Corp., 615
N.E.2d 431, 434 (Ind. 1993).
[10] Where, as here, the relevant facts are not in dispute and the interpretation of a
statute is at issue, such statutory interpretation presents a pure question of law
for which summary judgment disposition is appropriate. Sanders v. Bd. Of
Comm’rs of Brown Cnty., 892 N.E.2d 1249, 1252 (Ind. Ct. App. 2008), trans.
denied. Our standard of review is not altered by cross motions for summary
judgment. Id.[11] The first step in interpreting a statute is to determine whether the legislature has
spoken clearly and unambiguously on the point in question. Sees v. Bank One,
Indiana, N.A., 839 N.E.2d 154, 157 (Ind. 2005). When a statute is clear and
unambiguous, we need not apply any rules of construction other than to require
that the words and phrases be taken in their plain, ordinary, and usual sense.
Id. Clear and unambiguous statutes leave no room for judicial construction. Id.[12] The attorney’s lien statutes at issue in this case are Indiana Code sections 33-43-
4-1 and 2, which provide that:
An attorney practicing law in a court of record in Indiana may
hold a lien for the attorney’s fees on a judgment rendered in favor
of a person employing the attorney to obtain the judgment.
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An attorney, not later than sixty (60) days after the date the
judgment is rendered, must enter in writing upon the docket or
record in which the judgment is recorded, the attorney’s intention
to hold a lien on the judgment, along with the amount of the
attorney’s claim.
[13] An early version of this statute provided that an attorney had to enter his notice
of intention to hold the lien at the time the judgment of the trial court was
rendered. Alderman v. Nelson, 111 Ind. 255, 12 N.E. 394 (1887). The rule
subsequently evolved to permit an attorney to enter his lien within a reasonable
time after the entry of the judgment. Wood v. Hughes, 138 Ind. 179, 37 N.E. 588(1894). The statute was amended in 1949 to allow an attorney sixty days from
the entry of final judgment to enter his lien. Stroup v. Klump-O’Hannes, 749
N.E.2d 622, 624 (Ind. Ct. App. 2001). Specifically, the statute was amended to
state as follows:
Any attorney practicing his profession in any court of record in
this state, shall be entitled to hold a lien, for his fees, on any
judgment rendered in favor of any person or persons employing
such attorney to obtain the same: Provided, That such attorney,
within sixty (60) days from the time such judgment shall have
been rendered, enter in writing upon the docket or record
wherein the judgment is recorded, his intention to hold a lien
thereon, together with the amount of his claim.
[14] Ind. Code § 33-1-3-1 (1949). Cases interpreting this statute were clear that an
attorney had sixty days from the entry of final judgment to enter his lien,
Hollingsworth v. Stoops, 671 N.E.2d 165, 167 (Ind. Ct. App. 1996), and a lien
filed before any judgment was rendered was not valid because there was no
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judgment to which the lien could attach. Greenfield v. Greenfield, 591 N.E.2d
1057, 1059 n.4 (Ind. Ct. App. 1992), trans. denied.
[15] These cases would be dispositive to the issue in the instant case; however, in
2004, Indiana Code section 33-1-3-1 was repealed, amended, and recodified at
Indiana Code sections 33-43-4-1 and 2, where section 2 now provides that an
attorney must file his lien “not later than sixty (60) days after the judgment is
rendered.” Citing no authority in support of his proposition, Watts argues that
this slight change in the wording of the statute has relaxed the statutory
requirements to allow liens to be filed before a judgment is rendered. We
disagree.
[16] First, in Indiana Code section 33-43-4-2, the legislature clearly and
unambiguously stated that an attorney must enter his intention to hold a lien on
the judgment “in writing upon the docket or record in which the judgment is
recorded” not later than sixty days after the date the judgment is entered. This
clear and unambiguous language contemplates that a judgment must be
recorded before a lien may be entered.
[17] Further, this result is consistent with our construction of the mechanic’s lien
statutes. We look to statutes with similar statutory purposes for guidance.
Hollingsworth, 671 N.E.2d at 167. The mechanic’s lien statute is similar to the
attorney’s lien statute in that both were enacted to protect those who labor on
behalf of others. Id. A person who wishes to acquire a lien upon property is
required to file notice of his intention to hold the lien for the amount of the
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claim in the recorder’s office not later than sixty days after performing labor or
furnishing materials. Ind. Code § 32-28-3-3 (2008). This sixty-day period for
filing a notice of intention to hold a mechanic’s lien commences when the
subcontractor “finishes task for which it was hired.” Riddle v. Newton Crane
Service, Ind., 661 N.E.2d 6, 10 (Ind. Ct. App. 1996), trans. denied. Similarly, the
sixty-day period for filing a notice of intention to file an attorney fee lien
commences when the judgment is entered.
Conclusion
[18] Pursuant to Indiana Code section 33-43-4-2, an attorney fee lien is not valid if
the lien is filed before judgment is entered in the case. The trial court therefore
erred in granting Watts’ summary judgment motion and denying Clem’s. We
reverse and remand with instructions for the trial court to grant summary
judgment in favor of Clem.
Friedlander, J., and Pyle, J., concur.
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