Leroy Burke, Jr. v. Matthew Elkin (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 20 2016, 9:24 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Leroy Burke, Jr. Matthew J. Elkin
Bunker Hill, Indiana Kokomo, Indiana
Appellant Pro Se
IN THE
COURT OF APPEALS OF INDIANA
Leroy Burke, Jr., April 20, 2016
Appellant-Plaintiff, Court of Appeals Case No.
34A05-1509-PL-1404
v. Appeal from the Howard Superior
Court
Matthew Elkin, The Honorable George A.
Appellee-Defendant. Hopkins, Judge
Trial Court Cause No.
34D04-1504-PL-309
Altice, Judge.
Case Summary
[1] Leroy Burke filed a frivolous lawsuit against Matthew Elkin, and Elkin
responded with a counterclaim for abuse of process and a motion for summary
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judgment. Both parties proceeded pro se. The trial court granted summary
judgment in favor of Elkin and set the matter for a damages hearing. At the
hearing, Elkin, an attorney, testified regarding the time he spent defending
against Burke’s frivolous suit and indicated that his hourly rate was $200.
Based upon this evidence, the trial court awarded damages to Elkin in the
amount of $1600 plus costs. On appeal, Burke argues that Elkin was not
entitled to recover his own attorney fees as damages.
[2] We affirm.
Facts & Procedural History
[3] On April 21, 2015, Burke filed a complaint against Elkin based on Elkin’s prior
representation of Burke in a 2001 post-conviction relief action. Elkin responded
with a number of filings, including a counterclaim for abuse of process and a
motion for summary judgment. Elkin designated evidence that Burke had
previously filed suit against him based on the same claim. The prior case was
dismissed with prejudice in October 2006, and Burke did not appeal.
Accordingly, Elkin argued that the instant action was frivolous and filed in bad
faith. The trial court agreed and granted summary judgment in favor of Elkin
on the complaint and counterclaim. The trial court then set the matter for a
hearing on damages.
[4] At the damages hearing on August 27, 2015, Elkin testified in relevant part:
I’m an attorney practicing law for 25 years in the State of
Indiana. I am an attorney in good standing with the Indiana
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Supreme Court, familiar with the time and costs associated with
prosecuting an action such as this. Since the filing of this case
and my filing of responses, various documents pointing out this
has already been tried and decided, filing a Motion for Summary
Judgment, filing motions to strike and obtaining judgment, I put
approximately 8.2 hours into the case, which would include
obtaining affidavits, doing research, putting together the various
motions. I charge $200.00 an hour. Basically my attorney fees in
this case are my out-of-pocket costs and I’m asking for damages
in the sum of 8.2 hours times $200.00, $1640.00.
Transcript at 4. Though given the opportunity, Burke did not cross examine
Elkin regarding the amount of attorney fees claimed. The trial court took the
matter under advisement and entered judgment the following day against Burke
in the amount of $1600 plus costs.
Discussion & Decision
[5] Burke’s sole argument on appeal is that the trial court abused its discretion
when it ordered him to pay Elkin’s attorney fees. It did not.
[6] Despite the American Rule, Ind. Code § 34-52-1-1(b) makes clear that a party to
a civil action may recover attorney fees incurred defending against a frivolous
action or an action litigated in bad faith. Similarly, attorney fees may be
awarded as damages in an action for abuse of process. See I.C. § 34-52-1-1(c).
The issue in this case is whether Elkin may recover attorney fees for
representing himself.
[7] In Ziobron v. Crawford, 667 N.E.2d 202, 208 (Ind. Ct. App. 1996), trans. denied,
this court adopted the majority rule permitting an attorney representing him or
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herself to recover an award of attorney fees for the time and effort spent in
defending against a frivolous lawsuit. The court expressly held, “an attorney
may recover compensation for the time and effort spent in defending against a
malicious prosecution as an element of his damages.” Id. The court explained:
“To hold otherwise would be analogous to prohibiting an auto body repairman,
who had repaired his own car, from recovering reasonable compensation from
the vandal who had damaged the car.” Id.
[8] As set forth above, the trial court agreed with Elkin that Burke’s complaint was
frivolous and that Elkin should recover damages for abuse of process. Burke
does not appeal that determination. He challenges only the calculation of
resulting damages. Pursuant to Ziobron, the trial court properly awarded Elkin
reasonable compensation for the time and effort he spent as an attorney
defending himself below.1
[9] Judgment affirmed.
[10] Bailey, J. and Bradford, J., concur.
1
Burke asserts in passing that Elkin failed to “produce any time sheet, invoice, schedule or other document
to evidence his alleged time.” Appellant’s Brief at 3. However, such a document was not required because
Elkin testified at the damages hearing about the amount of time he spent defending the action and his hourly
rate. Accordingly, there was evidence presented upon which the trial court could make a determination
regarding the amount of damages.
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