Jul 17 2013, 5:52 am
FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
MARY BETH RAMEY WILLIAM H. KELLEY
Ramey & Hailey DARLA S. BROWN
Indianapolis, Indiana Kelley, Belcher & Brown
Bloomington, Indiana
NICHOLAS F. BAKER
The Hastings Law Firm
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MATTHEW LONGEST, Deceased, by )
ROBERT LONGEST, Administrator of the Estate
)
and Parent of Matthew Longest, and ROBERT)
LONGEST, JR., Administrator of the Estate of
)
MARIBEL LONGEST, Deceased and Parent of )
Matthew Longest, )
)
Appellants - Plaintiffs, )
)
vs. ) No. 47A05-1211-CT-594
)
LISA M. SLEDGE, a minor, and ROGER BROWN )
and DONNA SLEDGE, a/k/a DONNA SLEDGE )
BROWN,
)
Appellees - Defendants. )
APPEAL FROM THE LAWRENCE CIRCUIT COURT
The Honorable Andrea J. McCord, Judge
Cause No. 47C01-9910-CT-894
July 17, 2013
OPINION - FOR PUBLICATION
FRIEDLANDER, Judge
Robert Longest Sr. and Maribel Longest (collectively, the Longests) filed a wrongful
death action following the death of their son, Matthew Longest, and named Lisa Sledge,
Donna Sledge Brown, and Robert Brown as defendants. 1 The Longests appeal from a final
judgment following the trial court’s entry of partial summary judgment in favor of defendants
on the Longests’ claims under the Child Wrongful Death Statute 2 (CWDS) and the General
Wrongful Death Statute 3 (GWDS). The Longests raise the following issues for our review:
1. Did the trial court err in granting summary judgment for the defendants on
the Longests’ CWDS claim based on its conclusion that Matthew was not a
child for the purposes of the CWDS because he was not enrolled in a
vocational school or program?
2. Did the trial court err in granting partial summary judgment for the
defendants on the Longests’ GWDS claim based on its conclusion that the
Longests were not Matthew’s dependents for the purposes of the GWDS?
3. Did the trial court abuse its discretion in limiting its award of attorney fees?
We affirm in part, reverse in part, and remand with instructions.
In 1998, twenty-one-year-old Matthew was living with his parents and participating in
an informal, non-union apprenticeship to become a journeyman mason under his father’s
1
Robert Longest Sr. sued in dual capacities as Matthew’s parent and as the administrator of Matthew’s estate,
while Maribel sued solely in her capacity as Matthew’s parent. During the pendency of the litigation in this
matter, Maribel passed away. Maribel and Robert Sr.’s surviving son, Robert Longest Jr., was named
administrator of her estate and participates in this appeal in that capacity.
2
At the time of Matthew’s death, the CWDS was codified at Ind. Code Ann. § 34-1-1-8 (repealed July 1, 1998
by Pub. L. 1-1998, § 221). Effective July 1, 1998, the CWDS was recodified at Ind. Code Ann. § 34-23-2-1(West, Westlaw current through June 29, 2013, excluding P.L. 205-2013). Additionally, the relevant language
of the recodified statute was amended in 2008. Thus, for the purposes of this opinion, we will refer to the
language of the now-repealed I.C. § 34-1-1-8 when discussing the CWDS.
3
At the time of Matthew’s death, the GWDS was codified at Ind. Code Ann. § 34-1-1-2 (repealed July 1, 1998
by Pub. L. 1-1998, § 221). Effective July 1, 1998, the GWDS was recodified at Ind. Code Ann. § 34-23-1-1(West, Westlaw current through June 29, 2013, excluding P.L. 205-2013). The relevant language of the
2
supervision. Matthew had begun learning the masonry trade from his father while still in
high school, and after leaving high school in 1995, became his father’s full-time apprentice.
In December 1997, Robert Sr., who had previously been self-employed for a number of years
as a journeyman mason, took a job with Wilhelm Construction Company as a mason. At that
time, Matthew also began working for Wilhelm as a hod carrier. 4 Wilhelm offered a union
apprenticeship program, but Matthew did not enroll. Instead, Matthew continued his
informal apprenticeship with Robert Sr. while they worked together at Wilhelm.
On April 21, 1998, Robert Sr. was driving Matthew home after a day at work when
they were involved in a head-on collision with a vehicle driven by then-sixteen-year-old Lisa
Sledge. Matthew did not survive the accident, and Robert Sr. was seriously injured.
On October 4, 1999, the Longests filed an action against the defendants asserting four
claims: Count I, the estate’s wrongful death claim under the GWDS; Count II, the Longests’
wrongful death claim under the CWDS; Count III, Robert Sr.’s personal injury claim; and
Count IV, Maribel’s loss of consortium claim. 5 On April 12, 2001, the defendants filed a
motion for partial summary judgment arguing that recovery under the GWDS was limited to
medical, funeral, and administration expenses and attorney fees because the Longests were
not Matthew’s “dependent next of kin.” Appellant’s Appendix at 21. The Longests filed a
response in which they argued that they were entitled to recovery under the CWDS or,
GWDS did not change with its recodification and has not been subsequently amended. Accordingly, for ease
of reference, we will cite the current version of the statute in this appeal.
4
A hod carrier “works in conjunction with the masons, hauling brick, setting up the site, mixing mortar and
determining the amount of brick needed for a particular job.” Appellant’s Appendix at 62.
5
Counts III and IV were settled prior to trial and are not at issue in this appeal.
3
alternatively, the GWDS. The defendants replied in support of their motion for summary
judgment and argued that Matthew was not a child for the purposes of the CWDS because
Matthew’s apprenticeship with his father did not constitute enrollment in a vocational school
or program, and that Matthew’s contributions to the Longest household were insufficient to
create a genuine issue of material fact concerning whether his parents were dependent upon
him.
The trial court heard argument and took the matter under advisement before granting
partial summary judgment in favor of the defendants on September 25, 2001. In its order, the
trial court concluded that the Longests were not entitled to recover under the CWDS because
Matthew was not enrolled in a vocational school or program at the time of his death, and that
recovery under the GWDS was limited to medical and funeral expenses by the estate because
the Longests were not Matthew’s dependent next of kin. The trial court granted the
Longests’ request to certify its partial summary judgment order for interlocutory appeal, but
this court declined to accept jurisdiction.
On June 4, 2004, the Longests filed a motion asking the trial court to set aside its
partial summary judgment order, which the trial court denied on July 21, 2004. Thereafter,
on September 15, 2008, the Longests filed a motion asking the trial court to “certify the issue
of Matthew Longest[’s] legal status for Interlocutory Appeal to the Indiana Court of
Appeals.” Appellant’s Appendix at 122. The trial court granted the order, but this court
again declined to accept jurisdiction.
4
On May 23, 2012, a bench trial was held regarding liability and damages, at which the
Longests again asked the court to reconsider its prior partial summary judgment order. On
October 22, 2012, the trial court entered its final order. In the order, the trial court denied the
Longests’ request to set aside the partial summary judgment order, concluding that the
Longests “ha[d] not shown any additional evidence to persuade the court the decision was
incorrect.” Appellant’s Appendix at 132. The trial court found in favor of the Longests on
the issue of liability and entered an order on damages and attorney fees. The trial court
concluded that the damages recoverable were limited to funeral and burial expenses, costs
and expenses of administration of the estate, and attorney fees related to the administration of
the estate. The Longests now appeal.
1.
The Longests first argue that the trial court erred in granting summary judgment in
favor of the defendants on the Longests’ CWDS claim. When reviewing a trial court’s ruling
on a motion for summary judgment, this court stands in the shoes of the trial court and
applies the same standards in deciding whether to affirm or reverse the ruling. Ritchhart v.
Indianapolis Pub. Sch., 812 N.E.2d 189 (Ind. Ct. App. 2004), trans. denied. Thus, on appeal,
we must determine whether there is a genuine issue of material fact and whether the moving
party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St.
Paul Guardian Ins. Co., 904 N.E.2d 1267 (Ind. 2009). This standard requires us to construe
all factual inferences in favor of the nonmoving party, and all doubts as to the existence of an
5
issue of material fact must be resolved against the moving party. Dreaded, Inc. v. St. Paul
Guardian Ins. Co., 904 N.E.2d 1267.
The CWDS allows a parent to maintain an action against a person whose wrongful act
or omission causes the injury or death of a child. I.C. § 34-1-1-8. The remedies available in
such an action include damages for the loss of the child’s services, love, and companionship,
as well as medical, burial, and administrative expenses, including attorney fees. Id. At issue
in this appeal is whether Matthew was a child for the purposes of the CWDS at the time of
his death. The version of the CDWS in effect at the time of Matthew’s death provided the
following definition:
(a) As used in this section, “child” means an unmarried individual without
dependents who is:
(1) less than twenty (20) years of age; or
(2) less than twenty-three (23) years of age and is enrolled in an
institution of higher education or in a vocational school or program.
Id. This court has noted that the statutes creating actions for wrongful death are in
derogation of common law, and must therefore be strictly construed. Deaconess Hosp., Inc.
v. Gruber, 791 N.E.2d 841 (Ind. Ct. App. 2003). Nevertheless, this court has been willing to
interpret the language of the CWDS pertaining to enrollment in an institution of higher
education or a vocational school or program “as liberally as it can and still remain within the
clear meaning of the statute.” Ledbetter v. Ball Memorial Hosp., 724 N.E.2d 1113, 1118
(Ind. Ct. App. 2000) (citing Sweet v. Art Pape Transfer, Inc., 721 N.E.2d 311 (Ind. Ct. App.
1999), trans. dismissed), trans. denied.
6
The trial court granted summary judgment against the Longests based on its
conclusion that Matthew was not enrolled in an institution of higher education or a vocational
school or program at the time of his death. On appeal, the Longests argue that Matthew’s
informal apprenticeship under his father’s supervision constituted enrollment in a vocational
program. In support of this contention, the Longests direct our attention to the designated
affidavits of Robert Sr. and Edward Bickel, a former field representative for the local unit of
the International Union of Bricklayers & Allied Craftworkers. In these affidavits, both
Bickel and Robert Sr. attested that in order to become a mason, a person must complete an
apprenticeship with a person or persons who practice the trade. They testified further that
there are two types of apprenticeships. First, there are “[l]ess formalized (and usually non-
union) apprenticeship programs consisting exclusively of extensive-on-the-job training by a
skilled mason.” Appellant’s Appendix at 61, 79. Both Robert Sr. and Bickel attested that
there is no formal enrollment for this type of apprenticeship. Second, there are “[f]ormalized
apprenticeship programs organized by the union, which include classroom instruction in
addition to on the job training.” Id. at 61, 79. According to Bickel and Robert Sr., “[a]
person who completes either type of apprenticeship program and attains a high degree of skill
earns the title ‘journeyman mason.’” Id. at 62, 80. Both Bickel and Robert Sr. attested that
“[t]he International Union of Bricklayers & Allied Craftworkers recognizes both types of
training programs and will certify a person who completes a ‘non-union’ apprenticeship as a
union mason if the requisite skill of workmanship is shown.” Id. at 62, 80. Additionally,
Robert Sr. stated that he had become a union-certified mason through an informal, on-the job
7
apprenticeship, and that his oldest son, Robert Jr., became a union-certified mason by
completing a similar, informal apprenticeship under Robert Sr.’s supervision.
Robert Sr. attested further that from 1995 until 1997, he was self-employed as a
mason and Matthew worked full-time for him as his apprentice. Robert Sr. and Matthew
both took jobs at Wilhelm in December 1997—Robert Sr. as a mason and Matthew as a hod
carrier. Although Matthew did not enroll in Wilhelm’s union apprenticeship program, his
informal apprenticeship was ongoing at the time of his death. The Longests argue that this
informal, non-union apprenticeship was sufficient at least to create a genuine issue of
material fact concerning whether Matthew was enrolled in a vocational school or program at
the time of his death. In arguing that Matthew was not enrolled in such a program, the
defendants note that Matthew “was not taking any classes”; they note further that Matthew
had not enrolled in Wilhelm’s apprenticeship program, which “would have involved
classroom instruction, extensive record keeping, and enrollment in addition to on-the-job
training.” Appellee’s Brief at 7, 8. The defendants argue further that “[w]hat the Longests’
[sic] described as ‘an informal apprenticeship program’ was not a ‘program’ at all. The most
that the Longests were able to show was that Matthew Longest was considering entering an
apprenticeship at some point in the future.” Id. at 10.
In sum, the defendants argue that some degree of formality and classroom instruction
is required for a course of training to qualify as a vocational program for the purposes of the
CWDS. The Longests disagree and direct our attention to Sweet v. Art Pape Transfer, Inc.,
721 N.E.2d 311, which we find illuminating on this point. In that case, Sweet filed a CWDS
8
claim following the death of her twenty-one-year-old daughter, Shawnee. Shawnee had been
employed at the Trinity School of Natural Health, a non-profit Christian institution that was
not accredited through or financially supported by the state or federal government. Trinity
offered self-study programs in natural health, the successful completion of which would
result in titles such as “Master Herbalist, Doctor of Naturopathy, and Master of Holistic
Health.” Sweet v. Art Pape Transfer, Inc., 721 N.E.2d at 312. Students in the programs
answered a set of questions at the end of each section of their texts and sent their answers to
Trinity to be graded, without any imposed deadlines. As an employee of Trinity, Shawnee
was entitled to pursue the courses offered there free of charge and without filling out an
enrollment application. Although Trinity’s records did not reflect that Shawnee was enrolled
as a student at the time of her death, she had received permission from the registrar to pursue
the Master Herbalist course, obtained textbooks, and begun studying. Sweet v. Art Pape
Transfer, Inc., 721 N.E.2d 311.
The trial court granted summary judgment for the defendants on Sweet’s CWDS claim
based on its conclusion that Shawnee was not a child for the purposes of the CWDS because
she was not enrolled in a vocational school or program at the time of her death. This court
reversed. In addressing Sweet’s arguments on appeal, the court separately analyzed the
questions of whether Shawnee was “enrolled” and whether Trinity was a “vocational school
or program.” In concluding that Shawnee was “enrolled” for the purposes of the CWDS, the
court rejected the defendants’ contention that enrollment required the making of a written
record. Id. In doing so, the court noted that as an employee of Trinity, Shawnee was not
9
required to fill out an application form before commencing her studies, and that there would
have been no need for her to complete a financial agreement because the programs were free
of charge to her. Consequently, the court “decline[d] to impose upon this wrongful death
litigant a requirement of a written enrollment record where the statute includes no such
requirement and where the victim’s status as an employee-student would render a written
enrollment record superfluous.” Id. at 314.
Next, the court addressed whether Trinity could be classified as a “vocational school
or program.” Sweet argued that the self-study programs offered by Trinity were vocational
because they prepared students “to advise clients about natural health in jobs with
chiropractors and medical doctors, in health food stores, and with distributors of nutritional
supplements.” Id. This court agreed that the self-study programs were vocational for the
purposes of the statute, relying in part on the language of a now-repealed statutory provision
relating to public and private education, which broadly defined “vocational education” to
include “any education the major purpose of which is to prepare a person for profitable
employment.” Sweet v. Art Pape Transfer, Inc., 721 N.E.2d at 314 (quoting Ind. Code Ann.
§ 20-10.1-1-11(a) (repealed by P.L. 1-2005, § 240)).
Although Sweet is factually distinguishable from the case as hand, we find its
reasoning helpful here. We agree with that court’s conclusion that “enrollment” does not
necessarily require any written record, particularly where the circumstances indicate such
records would be unnecessary or superfluous. Here, both Bickel and Robert Sr. attested that
there is no formal enrollment process for non-union, on-the-job apprenticeships like the one
10
in which Matthew was participating. We decline to impose such a rigid requirement in this
case, particularly in light of the fact that Matthew was learning the trade under the
supervision of his own father. Rather, we conclude that in this context, to be “enrolled” in a
vocational program means no more than to be actively participating in such a program.
Robert Sr. testified that Matthew was continuously participating in the apprenticeship at the
time of his death. Thus, provided that the non-union apprenticeship qualifies as a vocational
program, we have little difficulty concluding that Matthew was “enrolled” for the purposes of
the CWDS.
Turning now to the question of whether the apprenticeship qualifies as a “vocational
school or program,” we agree with the Sweet court that the phrase encompasses “any
education the major purpose of which is to prepare a person for profitable employment.” Id
(citation omitted). Unlike the defendants, we see no reason to impose a requirement that
these educational programs contain a component of traditional classroom instruction. The
courses at issue in Sweet were self-study courses that required students to obtain textbooks,
study them, and complete a module of questions at the end of each chapter. Contrary to the
defendants’ assertion on appeal, there is no indication that the self-study courses at issue in
that case included classroom instruction.
Moreover, we believe the legislature’s decision to delay the age of majority for the
purposes of the CWDS from age twenty until age twenty-three where the decedent is enrolled
in an “institution of higher education or in a vocational school or program” reflects its
intention to allow recovery when a decedent was in active pursuit of any of a broad range of
11
educational goals—ranging from college degrees to trade designations and other, less
traditional certifications like those at issue in Sweet. We believe that disallowing coverage
based solely on a program’s informality and focus on real-world, on-the-job training as
opposed to classroom learning would ignore the practical realities of many courses of
vocational study and exclude those in pursuit of a number of traditional trade designations
from the operation of the CWDS. In light of the statute’s broad language and express
inclusion of vocational programs, we do not believe this to have been the legislature’s intent.
None of this is to suggest, however, that merely adding an element of on-the-job
training will transform what would otherwise be nothing more than a job into a vocational
program. Here, Matthew was simultaneously working as hod carrier and pursuing his
informal apprenticeship under his father’s supervision. Provided Matthew successfully
completed the apprenticeship and demonstrated the requisite skill, he would have attained the
title of journeyman mason and been eligible for union certification. As Robert Sr. attested,
“[w]hether working for me or for Wilhelm, and whether in the union’s formal apprentice
program or through the less formal, but equally accepted on-the-job training, Matthew was
working toward the completion of his apprenticeship and becoming a mason.” Appellant’s
Appendix at 63. Based on these facts, we conclude that the evidence most favorable to the
Longests as the non-moving parties is sufficient to create a genuine issue of material fact as
to whether the informal, non-union apprenticeship was a vocational program for the purposes
of the CWDS.
12
We therefore conclude that there are genuine issues of material fact precluding
summary judgment in favor of the defendants on the issue of Matthew’s status as a child for
the purposes of the CWDS. 6 Consequently, the trial court erred in granting summary
judgment on the Longests’ CWDS claim, and we remand with instructions to vacate that
portion of its judgment and for further proceedings consistent with this opinion.
2.
Next, the Longests argue that the trial court abused its discretion in granting partial
summary judgment on the issue of whether the Longests were Matthew’s dependent next of
kin for the purposes of the GWDS. The GWDS provides, in pertinent part:
When the death of one is caused by the wrongful act or omission of another,
the personal representative of the former may maintain an action therefor
against the latter . . . and the damages shall be in such an amount as may be
determined by the court or jury, including, but not limited to, reasonable
medical, hospital, funeral and burial expenses, and lost earnings of such
deceased person resulting from said wrongful act or omission. That part of the
damages which is recovered for reasonable medical, hospital, funeral and
burial expense shall inure to the exclusive benefit of the decedent’s estate for
the payment thereof. The remainder of the damages, if any, shall, subject to
the provisions of this article, inure to the exclusive benefit of the widow or
widower, as the case may be, and to the dependent children, if any, or
dependent next of kin, to be distributed in the same manner as the personal
property of the deceased. . . . [W]hen such decedent leaves no such widow,
widower, or dependent children, or dependent next of kin, surviving him or
her, the measure of damages to be recovered shall be the total of the necessary
and reasonable value of such hospitalization or hospital service, medical and
surgical services, such funeral expenses, and such costs and expenses of
administration, including attorney fees.
6
Because we reverse on the basis of the statutory language alone, we need not address the Longests’ argument
that a contrary construction of the statute would violate article 1, section 23 of the Indiana constitution.
13
I.C. § 34-23-1-1 (emphasis supplied). It is undisputed that Matthew left no widow or
dependent children. Thus, in order for the Longests to recover under the GWDS, they must
establish that they were Matthew’s “dependent next of kin.” 7 Concluding that the Longests
were not Matthew’s dependents, the trial court granted summary judgment for the defendants
on this issue.
On appeal, the Longests argue that the designated evidence establishes that they were
Matthew’s dependents. In the context of wrongful death actions, our Supreme Court has held
that “proof of dependency must show a need or necessity of support on the part of the person
alleged to be dependent . . . coupled with the contribution to such support by the deceased.”
New York Cent. R.R. Co. v. Johnson, 234 Ind. 457, 465, 127 N.E.2d 603, 607 (1955). This
court has noted:
Dependency is based on a condition and not a promise, and such dependency
must be actual, amounting to a necessitous want on the part of the beneficiary
and a recognition of that necessity on the part of decedent, an actual
dependence coupled with a reasonable expectation of support or with some
reasonable claim to support from decedent. The mere fact that deceased
occasionally contributed to the support of the beneficiary in an irregular way,
is not sufficient to support the action....
Deaconess Hosp., Inc. v. Gruber, 791 N.E.2d at 845 (quoting Wolf v. Boren, 685 N.E.2d 86,
88 (Ind. Ct. App. 1997) (ellipsis in original)).
7
We note that the Longests may not receive compensation under both the GWDS and the CWDS. See City of
Indianapolis v. Taylor, 707 N.E.2d 1047 (Ind. Ct. App. 1999) (noting that recovery by parents under both
statutes is impermissible because under the CWDS, a parent may recover only if the deceased has no
dependents, and under the GWDS, a parent may recover only if he or she is a dependent of the deceased). This
does not, however, prevent the Longests from pleading both claims in the alternative. See Alaska Seaboard
Partners, LP v. Hood, 949 N.E.2d 1247, 1254 (Ind. Ct. App. 2011) (noting that “a party may properly plead
alternative and contradictory theories”).
14
The designated evidence establishes that at the time of his death, Matthew was living
in his parents’ home. Both of his parents were able-bodied and gainfully employed, and they
admit that they were not totally dependent upon him. Nevertheless, they argue that they were
partially dependent on Matthew because Matthew paid his mother between fifty and one
hundred dollars per week for rent, food, laundry, and to offset the expenses of him living
there. In her deposition, Maribel testified that Matthew’s financial contributions totaled five
to six thousand dollars per year.
We acknowledge that total dependency is not required under the GWDS; indeed, this
court has held that a “plaintiff may be partially dependent even though he could survive
without the contribution made by the deceased.” Id. at 846 (quoting Lustick v. Hall, 403
N.E.2d 1128, 1131-32 (Ind. Ct. App. 1980)). On the other hand, our supreme court has held
that “[p]ayments for board, lodging or other accomodations . . . are not sufficient to establish
dependency on the part of the recipient.” New York Cent. R.R. Co. v. Johnson, 234 Ind. at
465, 127 N.E.2d at 607. Both Robert Sr. and Maribel acknowledged that the funds Maribel
received from Matthew were in the nature of payments for room, board, and laundry services.
Indeed, Maribel stated that she “charged” him between fifty and one hundred dollars per
month as a rent payment and in order to offset the expenses of him living in the home.
Transcript at 77. Accordingly, these payments are insufficient to create a genuine issue of
material fact with respect to dependency for the purposes of the GWDS.
The Longests also point out that Matthew performed services for his mother.
Specifically, Maribel testified in a deposition that “in the winter he’d bring wood down. He
15
done things to my car. He’d run errands for me. He was a tall young man so, you know, he
done a lot of things that I couldn’t do, reaching, just . . . Yes, I depended on him a lot.”
Appellant’s Appendix at 73.
Services may be sufficient to establish dependency, but the contributions must be
more than just a service or benefit to which the claimed dependent has become accustomed,
and they “must go beyond merely helping other family members, even those who have relied
on that assistance.” Deaconess Hosp., Inc. v. Gruber, 791 N.E.2d at 846 (quoting Estate of
Sears ex rel. Sears v. Griffin, 771 N.E.2d 1136, 1139 (Ind. 2002)).
We find this court’s decision in Chamberlain v. Parks, 692 N.E.2d 1380 (Ind. Ct.
App. 1998), trans. denied, instructive here. In that case, the decedent’s parents sought
recovery under the GWDS as dependent next of kin based on the personal services their son
had provided them during his lifetime. The decedent’s mother stated that she depended on
the decedent for a variety of services, including carrying groceries and laundry, household
cleaning and maintenance, yard work, working on cars, cooking, and running errands. The
trial court granted summary judgment for the defendants on the issue of dependency, and this
court affirmed, reasoning that the decedent’s acts “amounted to no more than gifts, donations
and acts of generosity expected of a son to whom free housing, most of his board, gasoline
money and automobile insurance was provided.” Id.We reach a similar conclusion here. We acknowledge that Matthew regularly helped
out around the house, and Maribel had undoubtedly come to expect and rely to some extent
upon that help. But as our Supreme Court has noted, “[s]ervices must go beyond merely
16
helping other family members, even those who have relied on that assistance.” Estate of
Sears ex rel. Sears v. Griffin, 771 N.E.2d at 1139. We therefore conclude that Matthew’s
actions amounted to no more than the sort of gifts, acts of generosity, and kindness to be
expected of a son still living under his parents’ roof. More is required to establish
dependency for the purposes of the GWDS. Accordingly, we cannot conclude that the trial
court erred in granting partial summary judgment in favor of the defendants on the Longests’
GWDS claim, and we affirm that portion of the judgment.
3.
Finally, the Longests argue that the trial court abused its discretion in limiting their
recovery of attorney fees. We review a trial court’s award of attorney fees for an abuse of
discretion; thus, we will reverse only when an award is clearly against the logic and effect of
the facts and circumstances before the court. Benaugh v. Garner, 876 N.E.2d 344 (Ind. Ct.
App. 2007), trans. denied. Under the GWDS, the Estate may recover “for the necessary and
reasonable costs and expenses of administering the estate and prosecuting or compromising
the action, including a reasonable attorney’s fee[.]” I.C. § 34-23-1-1 (emphasis supplied). 8
“What constitutes reasonable attorney fees is a matter largely within the trial court’s
discretion.” Franklin College v. Turner, 844 N.E.2d 99, 105 (Ind. Ct. App. 2006). In
determining whether a fee is reasonable, the trial court may consider such factors as the time,
labor, and skill required to perform the legal service, the amount involved and the results
8
Because the issue is not before us in this appeal, we do not address whether the Longests may recover
attorney fees related to their pursuit of the CWDS claim should they prevail on the merits of that claim on
remand. See I.C. § 34-1-1-8 (providing that plaintiffs in a CWDS claim may recover damages to pay the
expenses “of the administration of the child’s estate, including reasonable attorney’s fees”).
17
obtained, the experience, reputation, and ability of the lawyer, and the fee customarily
charged in the locality for similar legal services. Nunn Law Office v. Rosenthal, 905 N.E.2d
513 (Ind. Ct. App. 2009). Finally, “[t]he trial judge is considered to be an expert on the
question and may judicially know what constitutes a reasonable attorney’s fee.” Rand v. City
of Gary, 834 N.E.2d 721, 723 (Ind. Ct. App. 2005) (citing Glover v. Torrence, 723 N.E.2d
924, 938 (Ind. Ct. App. 2000)), trans. denied.
As an initial matter, we note that the issue of attorney fees was not addressed during
the bench trial in this matter; instead, the parties agreed to file post-trial submissions on the
issue. From our review of the chronological case summary and the trial court’s final order, it
appears that the Longests filed a verified petition for attorney fees and an attorney fee
affidavit on June 29, 2012, and the defendants filed a response in opposition on July 20,
2012, which was also accompanied by an affidavit. The Longests, however, have not
favored us with copies of any of these documents. “It is an appellant’s duty to provide an
adequate record for review.” Page v. Page, 849 N.E.2d 769, 771 (Ind. Ct. App. 2006).
Because the Longests have not presented us with a complete record, we are unable to review
the evidence presented to the trial court on this matter. Instead, we must rely exclusively on
the findings the trial court made in ruling on the Longests’ request for attorney fees.
The trial court entered the following relevant findings and conclusions with respect to
its attorney fee award:
The value of the attorney’s fees must be reasonable. Hillebrand v.
Supervised Estate of Large, 914 N.E.2d 846, 850 (Ind. Ct. App. 2009). The
court in Hillebrand held that “the damages awarded in a wrongful death action
may include the reasonable attorney fees necessary to pursue the action, and
18
these damages inure to the exclusive benefit of the estate for the payment of
such costs.” Id. I.C. 29-1-10-13 states that “an attorney performing services
for the estate at the instance of the personal representative shall have such
compensation therefore out of the estate as the court shall deem just and
reasonable.”
The plaintiff’s [sic] should only be able to recover for the attorney’s
fees associated with Count One of the complaint. It does not appear from the
interpretation of the statute that the plaintiffs should be able to recover for
attorney’s fees for Counts Two, Three and Four, as they were not related to the
administration of the estate. Further, the defendant was awarded summary
judgment with respect to Count Two, which was a claim by the parents of
Matthew Longest for the loss of love and companionship, services, and
affection of their son under the [CWDS].
The [attorney for the] plaintiff[s] also asks that the court set the rate of
her services at $350 per hour. This would be appropriate if the accident and all
subsequent hearings occurred in Indianapolis or the surrounding area.
However, the accident and all subsequent hearings occurred in Southern
Indiana. An affidavit submitted by the defense states the prevailing rates in
this area range from $125-150/hour. A “‘reasonable hourly rate’ is based upon
market rates in the community for similar services rendered.” Barker v. City of
West Lafayette, 878 N.E.2d 230, 233 (Ind. Ct. App. 2007).
CONCLUSION AND ORDER
. . . The plaintiffs are . . . entitled to receive reasonable attorney’s fees
for fees that are associated with the Estate of Matthew Longest. Indiana’s
[GWDS] doesn’t provide for the recovery of attorney’s fees for the claims of
Robert and Maribel Longest. Robert Longest settled his claim in December of
2004 and his claim for negligent infliction of emotional distress disappeared
with that settlement. Because we are dealing with only one of the four claims,
years of records and litigation expenses, and because all of the times and
expenses are lumped together in the attorney fee affidavit and expense sheets,
the records are not clear as to which expenses and hours go to the funeral and
burial expenses alone. The court now determines that to ask the Plaintiffs[’]
counsel to spend even more time sorting through documents and record’s [sic]
to submit specific affidavits as to the funeral and burial hours would delay this
case, from 1998, even further. Therefore, in that there were four original
claims and we are now dealing with one, the court finds that the equitable
solution is to award attorney fees for one fourth of the request at the prevailing
Lawrence County attorney fee rate of $150 per hour for a total fee award of
$11,356.50 (75.71 hours x $150) plus one forth [sic] of the expenses requested
$3,620.60 ($14,480.25 divided by 4).
Appellant’s Appendix at 134-35.
19
On appeal, the Longests argue that the trial court erred in awarding attorney fees for
only one-quarter of the billed hours based on its conclusion that attorney fees were
recoverable for only one of the four claims asserted in the Longests’ complaint. 9
Specifically, they argue that “[u]ltimately, the attorneys for the Longests and the Estates had
to prove a full case of liability and damages in order to recover any amount, even those
amounts for funeral expenses and Estate administration.” Appellant’s Brief at 19. The
Longests assert that because it was “impossible for the attorneys or the trial court to
subdivide the attorneys’ time devoted to this action,” they are entitled to recover fees for all
of the attorney hours spent in pursuit of this case. Id.On the record before us, we cannot agree. The record, such as it is, contains no
support for the Longests’ arguments in this regard. In fact, the record contains no evidence at
all concerning the hours the Longests’ attorneys spent in pursuit of this litigation, or the
manner in which they spent them. Indeed, we are unable to even determine whether the
Longests’ position on appeal with respect to the purported indivisibility of the time spent on
this matter is consistent with its position at trial. In light of our standard of review, we
decline to simply take the Longests’ statements on this issue at face value. Given the dearth
of evidence, we cannot conclude that the trial court abused its discretion in this regard. See
9
According to the Longests, “[t]he Estate presented alternative theories of recovery in the three mentioned
counts,” apparently referring to the three counts on which the trial court ruled were not eligible for an attorney
fee award—the CWDS claim, Robert Sr.’s personal injury claim, and Maribel’s loss of consortium claim.
Appellant’s Brief at 19. We note that none of these three claims were presented by the estate. The Longests,
not the estate, were the plaintiffs in the CWDS action. See I.C. § 34-1-1-8 (b) (providing that a CWDS claim
may be maintained by a parent or guardian). Likewise, Robert Sr. was the plaintiff in his personal injury action
and Maribel was the plaintiff in her loss of consortium action. The only cause of action advanced by the estate
20
Stewart v. TT Commercial One, LLC, 911 N.E.2d 51, 59 (Ind. Ct. App. 2009) (noting that
“[w]here 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”), trans. denied.
The Longests also assert that the trial court abused its discretion in reducing the billed
rate of $350 per hour to an award of $150 per hour. 10 According to the Longests, “[t]he trial
court never once reviewed whether the amount of hours or the value of the hours were
reasonable, but, instead, substituted the attorney’s regular billable rate for a Lawrence county
attorney fee.” Appellant’s Brief at 19. We disagree with this characterization of the trial
court’s order. The trial court clearly considered the reasonableness of the $350/hour billable
rate. Specifically, based on an affidavit submitted by the defendants concerning the
customary rates in Lawrence County, the trial court concluded that the billable rate was
unreasonable for the relevant market and substituted a typical Lawrence County rate. Again,
in light of the absence from the record of the relevant evidence concerning attorney fees, we
cannot conclude that the trial court abused its discretion in this regard. We therefore affirm
that part of the trial court’s judgment awarding attorney fees on the GWDS claim.
Judgment affirmed in part, reversed in part, and remanded with instructions.
was the GWDS claim. See I.C. § 34-23-1-1 (providing GWDS claims may be commenced by the personal
representative of the estate).
10
The Longests also argue that the trial court abused its discretion by failing to use “the lodestar method” to
determine a reasonable attorney fee. Appellant’s Brief at 19. The Longests quote Barker v. City of W.
Lafayette, 878 N.E.2d 230, 233 (Ind. Ct. App. 2007), for the proposition that “[t]he lodestar figure is the
product of a reasonable number of hours spent on the litigation times a reasonable hourly rate.” Assuming
arguendo that the trial court was required to employ this method, our review of the trial court’s order indicates
that it did just that. The court determined a reasonable number of hours spent on the claims for which attorney
fees were available (75.71 hours) and multiplied that by a reasonable hourly rate ($150 per hour), for a total
award of $11,356.50.
21
ROBB, C.J., and CRONE, J., concur.
22