Timothy W. Mackall, and Stephanie K. Mackall v. Cathedral Trustees, Inc., d/b/a Cathedral High School

Pursuant to Ind.Appellate Rule 65(D), this Nov 13 2013, 5:42 am
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANTS PRO SE: ATTORNEYS FOR APPELLEE:
TIMOTHY W. MACKALL RONALD W. BUCHMEIER
STEPHANIE K. MACKALL JEFFREY E. RAMSEY
Indianapolis, Indiana Hopper Blackwell, PC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TIMOTHY W. MACKALL, and )
STEPHANIE K. MACKALL, )
)
Appellants/Defendants, )
)
vs. ) No. 49A02-1304-CC-290
)
CATHEDRAL TRUSTEES, INC. d/b/a )
CATHEDRAL HIGH SCHOOL, )
)
Appellee/Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robert R. Altice, Jr., Judge
Cause No. 49D05-0807-CC-29352
November 13, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
After years of litigation stemming from their failure to pay their children’s high-
school tuition, Timothy and Stephanie Mackall (collectively, “the Mackalls”), pro se,
appeal the trial court’s order that they pay $47,510.70 in attorneys’ fees and costs for
post-judgment work performed by attorneys for Cathedral High School (“Cathedral”).
The Mackalls claim that the trial court lacked jurisdiction to rule in this matter and the
award of attorneys’ fees was improper. We conclude that the Mackalls’ jurisdictional
claim is barred by res judicata and the award of attorneys’ fees was proper. We affirm.
Facts and Procedural History
This appeal is the latest chapter in an ongoing dispute between these parties. The
dispute began in 2007, when the Mackalls enrolled their two children at Cathedral. The
Mackalls executed a Tuition Agreement, in which they agreed to pay $9675 in tuition for
each child for the 2007-2008 school year. The Mackalls did not pay according to the
terms of the agreement and owed Cathedral $19,245 at the end of the school year.
Cathedral filed suit against the Mackalls in July 2008 for their failure to pay
tuition. The Mackalls argued that they had agreed to a different payment plan and
Cathedral had produced inaccurate transcripts. The Mackalls sought to recover more
than $75,000 from Cathedral on those claims.
At a bench trial, Cathedral presented evidence of the contract between the parties
and the amounts owed. The Mackalls did not present any evidence or testimony. The
trial court entered judgment in Cathedral’s favor and found the Mackalls’ claims to be
meritless. The Mackalls did not appeal the trial court’s judgment.
2
In July 2010, Cathedral initiated proceedings supplemental to execute on the
judgment. A short time later, the Mackalls attempted to remove the suit to the United
States District Court for the Southern District of Indiana. The Mackalls filed a notice of
removal with the district court, requesting that the matter be consolidated with a federal
lawsuit filed against them by Cathedral and others. The Mackalls also sent a letter to the
trial-court clerk noting that they had filed the notice of removal with the district court.
They did not, however, file the notice of removal with the trial court.1
In early 2011, the district court entered an order on the Mackalls’ notice of
removal. The district court found that the Mackalls’ “purported removal” was “invalid
and of no effect,” explaining that “the removal of an action to federal court is to be
processed as a new civil action and the effort undertaken here, apart from its palpable
substantive deficiencies, was improper.” Appellants’ App. p. 107-09.
Cathedral filed a copy of the district court’s order rejecting the Mackalls’ removal
attempt. In March 2011, the trial court entered an order directing Stephanie Mackall’s
employer to begin garnishing her wages to satisfy the judgment. The Mackalls appealed
the garnishment order, challenging, among other things, the trial court’s jurisdiction.
Another panel of this Court affirmed the trial court’s order, concluding that the trial court
had jurisdiction to enforce its judgment through proceedings supplemental and the
garnishment order. See Mackall v. Cathedral Trs., Inc., No. 49A02-1104-CC-281 (Ind.
1
Although the Mackalls claim that they filed the notice of removal in person in September 2010,
the docket does not reflect any such filing and the Mackalls offer no proof of the filing.
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Ct. App. Aug. 4, 2011), trans. denied. The Mackalls went on to file numerous motions
and initiated two more appeals. Those appeals were dismissed by this Court.2
In February 2012, Cathedral filed a Trial Rule 59 motion to correct error seeking
to amend the 2009 judgment for the limited purpose of recovering post-judgment
attorneys’ fees and costs. The Mackalls filed a response, arguing that the trial court
lacked jurisdiction to hear the motion because the matter had been removed to federal
court. The trial court rejected the removal argument and awarded Cathedral $47,510.70
in post-judgment attorneys’ fees and costs. The Mackalls filed a motion to correct error,
which was denied. They now appeal.
Discussion and Decision
On appeal, the Mackalls challenge the trial court’s jurisdiction to award post-
judgment attorneys’ fees and costs. They also argue that the court erred by awarding
attorneys’ fees.
I. Jurisdiction
The Mackalls first argue that the trial court lacked jurisdiction to award post-
judgment attorneys’ fees and costs because the matter had been removed to federal court.
We disagree.
The United States District Court for the Southern District of Indiana ruled that the
Mackalls’ attempted removal was invalid. Thus, the matter was never actually removed
to federal court, and removal could not have divested the trial court of jurisdiction.
2
One appeal was dismissed because it was untimely, the other because the order appealed was
not a final, appealable order.
4
Moreover, res judicata bars the Mackalls from re-litigating the issue of
jurisdiction. Res judicata serves to prevent repetitious litigation of disputes that are
essentially the same. Hilliard v. Jacobs, 957 N.E.2d 1043, 1046 (Ind. Ct. App. 2011)
(citing MicroVote Gen. Corp. v. Ind. Election Comm’n, 924 N.E.2d 184, 191 (Ind. Ct.
App. 2010)), trans. denied. The doctrine of res judicata has two distinct components:
claim preclusion and issue preclusion. Id. (citing Dawson v. Estate of Ott, 796 N.E.2d
1190, 1195 (Ind. Ct. App. 2003)). Claim preclusion applies when a final judgment on the
merits has been rendered in a prior action, and it acts to bar a subsequent action on the
same claim between the same parties. Id. (citing MicroVote, 924 N.E.2d at 191). Claim
preclusion applies when the following four factors are satisfied:
1) the former judgment must have been rendered by a court of competent
jurisdiction; 2) the former judgment must have been rendered on the merits;
3) the matter now in issue was, or could have been, determined in the prior
action; and 4) the controversy adjudicated in the former action must have
been between the parties to the present suit or their privies.
Id. Here, all four factors are satisfied. The former judgment—the final judgment and
accompanying garnishment order—were entered by a court of competent jurisdiction and
rendered on the merits.3 And the jurisdictional argument now raised by the Mackalls
could have been determined in the prior action: the Mackalls wrote a letter to the trial-
court clerk saying that the matter had been removed to federal court more than five
months before the trial court entered its judgment. Finally, all parties involved in that
controversy remain the same.
3
See Mackall, No. 49A02-1104-CC-281 (confirming the trial court’s jurisdiction).
5
The same reasoning applies to the district court’s order on the Mackalls’ removal
attempt. The district court, a court of competent jurisdiction, ruled that the Mackalls’
attempt to remove the matter was invalid. All the same parties participated in that action.
We conclude that the Mackalls’ jurisdictional claim is barred by res judicata.4
II. Post-Judgment Attorneys’ Fees
The Mackalls also argue that the trial court erred by awarding attorneys’ fees to
Cathedral. They argue that Cathedral’s request for attorneys’ fees was untimely under
Trial Rule 59(C) and Cathedral waived its right to attorneys’ fees. They also contend that
the attorneys’ fees were improperly awarded to a non-lawyer.
The original judgment in this case was entered in 2009. Since then, the Mackalls
have filed three appeals—this being the fourth—and many post-judgment motions. In
2012, Cathedral requested post-judgment attorneys’ fees and costs incurred for enforcing
and defending the judgment and responding to the Mackalls’ appeals.
In R.L. Turner Corp. v. Town of Brownsburg, our Supreme Court noted that “when
a prevailing party files a petition for attorneys’ fees after the time limits in Indiana Trial
Rules 59(C) or 60(B) have passed, the losing party sometimes tries to shoehorn that
petition into one of these Rules so he can denounce it as being untimely.” 963 N.E.2d
453, 460 (Ind. 2012). That is what the Mackalls do here; they claim Cathedral’s request
4
Issue preclusion would also bar the Mackalls’ jurisdictional claim. Issue preclusion bars
subsequent litigation of a fact or issue that was necessarily adjudicated in a former suit if the same fact or
issue is presented in a later lawsuit. Musgrave v. Squaw Creek Coal Co., 964 N.E.2d 891, 899 (Ind. Ct.
App. 2012) (citation omitted), trans. denied. Where issue preclusion applies, the former adjudication will
be conclusive in the later action even if the two actions are different claims. Id. However, the former
adjudication will only be conclusive as to those issues that were actually litigated and determined therein.
Id. Here, the issue of jurisdiction was actually litigated and determined by the trial court and this Court in
the Mackalls’ previous appeal.
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for attorneys’ fees was untimely under Trial Rule 59(C). See Appellants’ Br. p. 44-45.
While Cathedral captioned its request for attorneys’ fees as a motion to correct error
under Trial Rule 59, it was, in substance, a petition for attorneys’ fees—Cathedral was
not challenging the merits of the 2009 judgment. And the Court in R.L. Turner Corp.
explained that a petition for attorneys’ fees:
does not disturb the merits of an earlier judgment or order, so it does not
implicate Indiana Trial Rules 59(C) or 60(D). As such, none of those
respective time limits govern a petition for attorneys’ fees. Instead, trial
courts must use their discretion to prevent unfairness to parties facing
petitions for fees. A request for attorneys’ fees almost by definition is not
ripe for consideration until after the main event reaches an end.
Entertaining such petitions post-judgment is virtually the norm.
963 N.E.2d at 460 (emphasis added). The Mackalls’ argument that Cathedral’s request
for attorneys’ fees was untimely under Trial Rule 59(C) fails.
We acknowledge the fact that Cathedral’s request for attorneys’ fees came years
after the 2009 judgment in its favor. But Cathedral did not seek attorneys’ fees for work
performed at the 2009 trial; rather, Cathedral sought attorneys’ fees for enforcing the
judgment and defending it after years of fruitless litigation initiated by the Mackalls.
And Cathedral’s motion for attorneys’ fees could not have been entirely unexpected; the
contract for tuition allowed for recovery of attorneys’ fees in the event of litigation.
Moreover, the Mackalls had notice of and an opportunity to defend against Cathedral’s
motion. For these reasons, though Cathedral’s request for attorneys’ fees came years
after the judgment in its favor, we cannot say that the delay was unfair to the Mackalls.
The Mackalls also contend that Cathedral waived its right to attorneys’ fees. They
claim that because Cathedral did not seek payment of attorneys’ fees and costs associated
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with the trial, Cathedral voluntarily relinquished its right to post-judgment attorneys’
fees. But there is no case law that supports the Mackalls’ assertion that the ability to
recover attorneys’ fees for work performed post-judgment is somehow contingent upon
whether trial attorneys’ fees were sought. Waiver requires the intentional relinquishment
of a known right; it necessitates both knowledge of the existence of the right and the
intention to relinquish it. See City of Crown Point v. Misty Woods Props., LLC, 864
N.E.2d 1069, 1079 (Ind. Ct. App. 2007). Cathedral has not waived its right to post-
judgment attorneys’ fees.
Finally, the Mackalls claim that the award of attorneys’ fees was improper because
fees were paid for work performed by an attorney, Ronald W. Buchmeier, who was
removed as the attorney of record in this case. Operating under this premise, the
Mackalls accuse the trial court of sanctioning the unauthorized practice of law. But the
record shows that Buchmeier has always been attorney of record in this case; he was not
removed nor did he withdraw. There is no error here.
Affirmed.
BAKER, J., and FRIEDLANDER, J., concur.
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