                                                                  FILED
                                                             Dec 21 2016, 6:56 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEY FOR APPELLEES                                    ATTORNEY FOR APPELLANTS
Kenneth J. Munson                                         Christopher J. McElwee
Hoover Hull Turner LLP                                    Monday Jones & Albright
Indianapolis, Indiana                                     Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shelby’s Landing – II, Inc.,                              December 21, 2016
Richard Deckard, Jr., Marilyn                             Court of Appeals Case No.
Deckard, and Deckard Realty &                             73A01-1509-CC-1403
Development Co.,                                          Appeal from the Shelby Superior
Appellants-Defendants,                                    Court
                                                          The Honorable Charles D.
        v.                                                O’Connor, Special Judge
                                                          Trial Court Cause No.
PNC Multifamily Capital                                   73D01-1108-CC-259
Institutional Fund XXVI
Limited Partnership, Columbia
Housing SLP Corporation and
Shelby’s Landing II – L.P.,
Appellees-Plaintiffs.




Pyle, Judge.




Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016          Page 1 of 20
                                        Statement of the Case
[1]   Appellants-Defendants, Shelby’s Landing-II, Inc. (“Shelby’s Landing”);

      Richard Deckard, Jr. (“Richard”); Marilyn Deckard (“Marilyn”); and Deckard

      Realty & Development Co. (“Deckard Realty”) (collectively, “the

      Defendants”), appeal the trial court’s judgment in favor of Appellees-Plaintiffs,

      PNC Multifamily Capital Institutional Fund XXVI Limited Partnership (“PNC

      Multifamily”); Columbia Housing SLP Corporation (“Columbia”); and

      Shelby’s Landing II-L.P. (“the Partnership”) (collectively, “the Plaintiffs”), in

      their breach of contract claim. The Defendants argue that it was error for the

      trial court to find that they had misappropriated the Partnership’s funds and

      committed theft because the Plaintiffs did not raise misappropriation or theft

      claims in their complaint. They also argue that the trial court abused its

      discretion by awarding the Plaintiffs an unreasonable amount of attorney fees.


[2]   We conclude that, regardless of the trial court’s misappropriation and theft

      findings and conclusions, there were adequate uncontested findings and

      conclusions to support the trial court’s judgment. Because we also conclude

      that the trial court awarded the Plaintiffs a reasonable amount for their attorney

      fees, we affirm the trial court’s judgment.


[3]   We affirm.


                                                     Issues
              1. Whether the trial court erred when it entered findings that the
              Defendants had committed misappropriation and theft.


      Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016   Page 2 of 20
              2. Whether the trial court abused its discretion in determining the
              amount of attorney fees to award the Plaintiffs.

                                                      Facts
[4]   In April 2005, Shelby’s Landing, Deckard Realty, Columbia, and PNC

      Multifamily entered into a limited partnership agreement (“Partnership

      Agreement”), forming the Partnership. The purpose of the Partnership was to

      “construct, rehabilitate, acquire, own, maintain, manage, lease, sell, mortgage,

      or otherwise dispose” of property in Shelbyville, Indiana, in order to profit from

      a tax credit system designed to encourage private investment in low-income

      housing developments. (App. 220). The Partnership Agreement named

      Shelby’s Landing as the General Partner of the Partnership; PNC Multifamily

      and Columbia as the Limited Partners (collectively, “the Limited Partners”) of

      the Partnership; and Deckard Realty as the developer of the Partnership. The

      President of Shelby’s Landing, Richard, was also the President of Deckard

      Realty.


[5]   Pursuant to the Partnership Agreement, Shelby’s Landing’s duties as General

      Partner included, in relevant part: (1) managing the Partnership’s business; (2)

      keeping and maintaining the Partnership’s accounting records; (3) advancing all

      funds necessary to meet operating deficits; (4) maintaining tenant security

      deposits in separate accounts; and (5) making an immediate capital contribution

      to fund any necessary credit adjustment amounts. It was also prohibited from,

      without the consent of the Limited Partners, borrowing from the Partnership;




      Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016   Page 3 of 20
      commingling partnership funds with the funds of any other person; or causing

      the Partnership to make any loan or advance to any other person.


[6]   The same day that the partners executed the Partnership Agreement, Deckard

      Realty, Richard, and Marilyn (collectively, “the Guarantors”) executed a

      guaranty agreement (“Guaranty Agreement”). In the Guaranty Agreement, the

      Guarantors guaranteed:

              to the Partnership and the Limited Partners the full and prompt
              payment, performance, observance, compliance, and satisfaction
              of all obligations, covenants, representations, and warranties on
              the part of the General Partner to be paid, performed, observed,
              complied with, or satisfied with respect to the [Partnership]
              Agreement.

      (App. 305). The terms of the Guaranty Agreement also provided that:

              . . . Upon any default by the Partnership or the General Partner
              or the Developer or Other Obligors relating to any obligation
              under the [Partnership] Agreement, the Limited Partners may, at
              either of their option, proceed directly and at once against the
              Guarantor[s] to collect the full amount of the Guarantor[s’]
              liability hereunder, or any portion thereof, without first
              proceeding against the Partnership, the General Partner, the
              Developer, any Other Obligors, or any person, corporation,
              partnership, or other entity.

      (App. 306).


[7]   Subsequently, due to delays in the development of the Shelbyville property, the

      partners executed an amendment to the Partnership Agreement (“Adjuster

      Note”) recognizing that the Partnership, Shelby’s Landing, and the Guarantors

      owed the Limited Partners an adjusted amount of $950,000 plus interest


      Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016   Page 4 of 20
      (“Adjuster Amount”), to be paid in installments.1 Shelby’s Landing, Richard,

      and Marilyn guaranteed the Adjuster Note as Guarantors.


[8]   Three years later, on or about November 10, 2010, the Limited Partners sent

      Shelby’s Landing a written notice that it was in default under the Partnership

      Agreement. Specifically, they alleged that Shelby’s Landing had: (1) failed to

      take all actions necessary to maintain and operate the Shelbyville property; (2)

      defaulted under the construction loan for the property; (3) defaulted in repaying

      the Adjuster Note; and (4) made loans or advances to itself or other affiliates

      without the consent of the Limited Partners. The Limited Partners demanded

      that Shelby’s Landing cure its default by November 16, 2010, or face removal

      from its status as General Partner.


[9]   Shelby’s Landing did not cure its alleged breaches of the Partnership

      Agreement, and the Limited Partners sent it another written notice of default on

      June 22, 2011. In this second notice, the Limited Partners again requested that

      Shelby’s Landing cure the breaches they had identified in their November 10

      notice of default. They also alleged that Shelby’s Landing had committed

      additional breaches of contract since November 10, including failing to provide

      the Limited Partners with federal and state tax returns and audited Partnership

      financial statements. The Limited Partners demanded that Shelby’s Landing

      cure all of the alleged defaults by July 5, 2011, or be subject to removal from




      1
          This amount was distinct from any monetary liabilities under the Partnership Agreement.


      Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016                  Page 5 of 20
       being General Partner. They also stated that they were sending the notice to

       the Guarantors pursuant to the terms of the Guaranty Agreement, “to demand

       that Guarantor[s] immediately cure or cause to be cured the defaults of

       [Shelby’s Landing].” (App. 171).


[10]   Shelby’s Landing again failed to cure its defaults. Accordingly, on August 17,

       2011, the Limited Partners and the Partnership sent Shelby’s Landing a notice

       of its removal as General Partner. Five days later, on August 22, 2011, the

       Plaintiffs—the Limited Partners and the Partnership—filed a complaint against

       the Defendants—Shelby’s Landing and the Guarantors. In their complaint, the

       Plaintiffs raised breach of contract and breach of guaranty claims. In addition

       to declaratory and other forms of relief, the Plaintiffs also requested recovery of

       their attorney fees.


[11]   On September 7, 2012, the Plaintiffs filed a motion for partial summary

       judgment requesting, among other judgments, a declaration that Shelby’s

       Landing had been properly removed as General Partner and a judgment against

       Shelby’s Landing and the Guarantors for the amounts due under the Adjuster

       Note. The trial court granted the motion for a partial summary judgment on

       July 19, 2013, and held a trial to determine the remaining issues of liability and

       damages on January 26, 2015.


[12]   At trial, the parties presented evidence of liability and damages, and the

       Plaintiffs attempted to admit two affidavits from their attorneys and invoices

       documenting the attorneys’ fees. The Defendants objected to the admission of


       Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016   Page 6 of 20
       the affidavits and invoices on grounds of hearsay, but the trial court

       conditionally admitted them, pending post-hearing argument from the parties.


[13]   As a result of other evidence admitted at the January 26 trial, the trial court

       entered the following findings of fact and conclusions of law:


                                                Findings of Fact

                                                 *        *       *

               29) [Shelby’s Landing], as the General Partner through August
               17, 2011, was responsible for the day-to-day management of the
               [Partnership], and, as such, was and is responsible to the
               [P]artnership for the misuse of partnership funds.

               30) As Guarantors, [Richard] and [Marilyn] and Deckard Realty
               are jointly and severally responsible for the General Partner’s
               obligations to the Partnership for any misuse of partnership
               funds.

                                                 *        *       *

               33) The sum of $1,596,290.46 was paid with checks written to or
               for the benefit of Affiliates of the General Partner, as that term is
               defined on page 3 of the Partnership Agreement.

                                                 *        *       *

               35) The 2005 Partnership Agreement provides in section 6.3 that
               without the express written consent of PNC Multifamily, the
               General Partner was prohibited from transferring any asset of the
               Partnership, borrowing or comingling funds of the Partnership[,]
               and causing the Partnership to make any loan or advance to the
               General Partner o[r] its Affiliates.

               36) After the General Partner’s removal, [Richard] admitted that
               he comingled Partnership funds with the funds of Deckard Realty


       Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016   Page 7 of 20
        and that PNC Multifamily never provided written consent to any
        comingling of Partnership funds.

        37) [Richard] further also admitted that he transferred
        Partnership assets and made loans or advances of Partnership
        funds to Affiliates, and he further admitted that PNC Multifamily
        never provided written consent to any transfers, loans or
        advances to Affiliates.

                                          *        *       *

        45) Considering the totality of the evidence, the Court finds [the]
        Defendants’ acts of misappropriation to be intentional and
        willful.

                                          *        *       *

        87) The [D]efendant[]s elicited testimony that perhaps some
        payments to the Defendants and the General Partner’s affiliates
        could have been made to reimburse actual partnership expenses.
        However, the Defendants failed to otherwise provide any
        evidence that any payment actually was for a reimbursable
        Partnership expense.

        88) Moreover, the evidence was clear that at no time did the
        General Partner ever obtain consent from the PNC Multifamily
        to pay an affiliate, even if the payment was to be considered an
        ordinary course receivable under section 6.3(n) of the 2005
        Partnership Agreement.

        89) Accordingly, none of the $1,596,290.46 paid to the Deckard
        Affiliates was proper and therefore both the General Partner and
        the remaining Defendant Guarantors are liable for the improper
        payments made to those affiliates between 2006 through August
        of 2011.

                                      Conclusions of Law

                                          *        *       *

Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016   Page 8 of 20
                 B. The Defendants individually and as [G]uarantors
                 breached their duties to the Plaintiffs under the Partnership
                 [A]greement.

                                          *        *       *

        98) The General Partner breached its contractual and fiduciary
        obligations under the Partnership Agreement: not to transfer
        assets of the Partnership, not to comingle Partnership funds, and
        not to loan or advance Partnership funds to affiliates.

        99) The Plaintiffs incurred damages as a result of the General
        Partner’s breaches of its contractual and fiduciary obligations
        under the Partnership Agreement.

        100) The Defendants are jointly and severally obligated under the
        Agreement of Guaranty to each of the Plaintiffs for the General
        Partner’s breaches of the Partnership Agreement.

        101) The Defendants are jointly and severally obligated under the
        Agreement of Guaranty to each of the Plaintiffs for the General
        Partner’s misappropriation of Partnership funds as detained [sic]
        herein.

        102) The Defendants, individually and as [G]uarantors, breached
        their duties to the Plaintiffs under the Adjuster [] Note.

                                          *        *       *

        110) The [D]efendants are jointly and severally liable to PNC
        Multifamily on the Adjuster Note through January 27, 2015 in
        the total amount of $1,140,428.87, plus interest in the amount of
        $82.08 per day thereafter through final judgment, plus post-
        judgment interest on the total amount outstanding (principal plus
        interest) as of the date of final judgment at the prime rate
        public[ly] announced by PNC Bank, National Association based
        until satisfaction of the judgment.

        111) A criminal conviction for theft is not a condition precedent
        to recovery in a civil action for theft. A claimant must merely
Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016   Page 9 of 20
        prove commission of the crime by a preponderance of the
        evidence. Under [IND. CODE] § 35-43-4-2(a), “a person who
        knowingly or intentionally exerts unauthorized control over
        property of another person, with intent to deprive the other
        person of any part of its value or use, commits theft, a Class D
        felony.”

        112) [Richard] knowingly and intentionally exerted unauthorized
        control over the Partnership’s funds, with the intent to deprive
        the Partnership of its funds.

        113) The General Partner was responsible [for] manag[ing] the
        Partnership funds and breached its obligations to the Plaintiffs to
        prevent the misappropriation of the Partnership’s funds.

        114) The Defendants participated in [Richard’s]
        misappropriation of Partnership finds and are jointly and
        severally liable as a result of their participation in the
        misappropriations and as a result of their guaranty of the General
        Partner’s obligations to the Plaintiffs.

        115) The Defendants breached their obligations to the Plaintiffs.

        116) The Plaintiffs were harmed and damaged by the
        Defendant[s’] breaches.

        117) The Plaintiffs were damaged in the amount of
        $1,596,290.46.

        118) The Defendants are jointly and severally liable to the
        Plaintiffs in the amount of $1,596,290.46 improperly paid to and
        misappropriated by the Defendants and their affiliates.

        119) Attorney fees incurred to enforce the terms of the Adjuster
        Note are recoverable under paragraph 6 of the Note.

        120) Attorney fees incurred by Plaintiffs to enforce the obligation
        of Defendant Guarantors pursuant to the Agreement of Guaranty
        and the Partnership Agreement are recoverable under paragraph
        8 of the Agreement of Guaranty.
Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016   Page 10 of 20
                121) Defendants agreed to the attorney fee provisions in the
                Adjuster Note and Guaranty Agreement.

       (App. 26-38) (internal citations omitted). The trial court then entered judgment

       in favor of the Plaintiffs in the amount of $1,140,428.87 plus interest for the

       Defendants’ breach of the Adjuster Note and $1,596,290.46 for the Defendants’

       breach of the Partnership Agreement.


[14]   On May 27, 2015, the Defendants filed a motion to correct error arguing that

       the trial court had erred in its Findings and Conclusions Numbers 45, 98, 111,

       and 112 because the Plaintiffs had not pled claims of theft or breach of fiduciary

       duty.2 The trial court held a hearing on the Defendants’ motion, as well as the

       Plaintiffs’ unresolved attorney fee request, on July 22, 2015.


[15]   At the hearing, the parties discussed the attorney fee request and the motion to

       correct error. With respect to attorney fees, the Plaintiffs argued that the trial

       court should admit the affidavits and invoices of the Plaintiffs’ attorney fees that

       the court had conditionally admitted at trial. They also introduced

       supplemental affidavits from the lead counsel for their law firms, establishing

       that the conditional exhibits in question were admissible as certified business

       records. The trial court showed the affidavits as filed on that day.




       2
         While the Defendants cited the trial court’s Finding Number 45, which referred to misappropriation, they
       did not specifically challenge the trial court’s reference to misappropriation in their motion to correct error.
       They solely argue that the trial court erred by finding that they had committed theft and had breached their
       fiduciary duty.

       Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016                        Page 11 of 20
[16]   Thereafter, on August 12, 2015, the trial court issued an order partially granting

       the Defendants’ motion to correct error. It amended its Finding Number 45,

       which had originally provided: “Considering the totality of the evidence, the

       Court finds [] Defendants’ acts of misappropriation to be intentional and

       willful.” (App. 33). The amended finding instead provided that: “Considering

       the totality of the evidence, the Court finds [Richard] and [Shelby’s Landing]

       committed acts of misappropriation.” (App. 43). It also amended its

       Conclusion Number 114, which had originally provided: “The Defendants

       participated in [Richard’s] misappropriation of Partnership funds and are jointly

       and severally liable as a result of their participation in the misappropriations

       and as a result of their guaranty of the General Partner’s obligations to the

       Plaintiffs.” (App. 38). The amended version of Conclusion Number 114

       provided that: “Defendants are jointly and severally liable as a result of their

       guaranty of the General Partner’s obligations to the Plaintiffs.” (App. 44). The

       trial court then denied the Defendants’ motion with respect to its Findings and

       Conclusions Numbers 98, 110, and 112. The trial court also determined that

       the Plaintiffs’ requested attorney fees of $385,125.26 were reasonable and

       awarded them recovery of those fees.


[17]   The Defendants now appeal the trial court’s partial denial of their motion to

       correct error and its award of attorney fees.


                                                    Decision
[18]   On appeal, the Defendants argue that: (1) the trial court’s findings and

       conclusions regarding misappropriation and theft were erroneous because the
       Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016   Page 12 of 20
       Plaintiffs did not raise specific claims of misappropriation or theft in their

       complaint; and (2) the trial court abused its discretion in determining the

       amount of attorney fees to award the Plaintiffs. We will address each of these

       arguments issues in turn.


       1. Misappropriation and Theft

[19]   First, the Defendants argue that the trial court’s findings of fact and conclusions

       of law were erroneous because the trial court concluded that they had

       misappropriated funds and committed theft, even though the Plaintiffs did not

       raise misappropriation or theft claims in their complaint. Specifically, the

       Defendants challenge the trial court’s revised (pursuant to their motion to

       correct errors) Finding Number 45, in which the trial court found that Richard

       had “committed acts of misappropriation.”3 (App. 43). With respect to theft,

       the Defendants challenge the trial court’s Conclusions Numbers 111 and 112, in

       which the trial court stated the elements for a theft claim and concluded that

       Richard had “knowingly and intentionally exerted unauthorized control over

       the Partnership’s funds.” (App. 37).


[20]   When reviewing findings of fact and conclusions of law, we apply a two-tiered

       standard of review by first determining whether the evidence supports the

       findings and then whether the findings support the judgment. Bayview Loan




       3
         They also challenge the trial court’s original Conclusion Number 114 in which the trial court concluded that
       “[t]he Defendants participated in [Richard’s] misappropriation of Partnership funds and are jointly and
       severally liable as a result . . . .” (App. 38). Notably, this conclusion is no longer relevant, as the trial court
       amended it in response to the Defendants’ motion to correct error.

       Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016                        Page 13 of 20
       Servicing, LLC v. Golden Foods, Inc., 59 N.E.3d 1056, 1066 (Ind. Ct. App. 2016).

       The trial court’s findings and judgment will be set aside only if they are clearly

       erroneous. Id. A judgment is clearly erroneous if it applies the wrong legal

       standard to properly found facts. Id. at 1066-67. To determine that a finding or

       conclusion is clearly erroneous, our review of the evidence must leave us with

       the firm conviction that a mistake has been made. Id. at 1067. “‘[E]ven an

       erroneous finding is not fatal to the trial court’s judgment if the remaining valid

       findings and conclusions support the judgment, rendering the erroneous finding

       superfluous and harmless as a matter of law.’” Curley v. Lake Cnty. Bd. of

       Elections & Registration, 896 N.E.2d 24, 32 (Ind. Ct. App. 2008) (quoting Lakes &

       Rivers Transfer v. Rudolph Robinson Steel Co., 795 N.E.2d 1126, 1132 (Ind. Ct.

       App. 2003)), trans. denied.


[21]   Significantly, the Defendants challenge the trial court’s findings of fact and

       conclusions of law, but they do not challenge the trial court’s ultimate

       judgment. In fact, they acknowledge in their Appellant’s Brief that “striking the

       conclusions related to theft will have no effect on the final judgment amount

       entered by the trial court,” (Defendants’ Br. 18), and “[s]triking the conclusions

       related to the misappropriation will have no effect on the final judgment

       amount entered by the trial court.” (Defendants’ Br. 19). Nevertheless, they

       request that we vacate the judgment. This request contradicts our well-

       established rule that “‘even an erroneous finding is not fatal to the trial court’s

       judgment if the remaining valid findings and conclusions support the judgment

       . . . .’” Curley, 896 N.E.2d at 32 (quoting Lakes & Rivers Transfer, 795 N.E.2d at

       Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016   Page 14 of 20
       1132)). The Defendants’ acknowledgment that the judgment is not dependent

       on the trial court’s misappropriation and theft findings and conclusions seems

       to inherently acknowledge that there were other findings and conclusions that

       supported the judgment.


[22]   Regardless of whether this was the Defendants’ intended implication, we find

       that there were other findings and conclusions to support the judgment because

       the trial court made significant findings and conclusions regarding the

       Defendants’ breach of the Purchase Agreement and Guaranty. Specifically, the

       trial court concluded:

               98) The General Partner breached its contractual and fiduciary
               obligations under the Partnership Agreement: not to transfer
               assets of the Partnership, not to comingle Partnership funds, and
               not to loan or advance Partnership funds to affiliates.

               99) The Plaintiffs incurred damages as a result of the General
               Partner’s breaches of its contractual and fiduciary obligations
               under the Partnership Agreement.

               100) The Defendants are jointly and severally obligated under the
               Agreement of Guaranty to each of the Plaintiffs for the General
               Partner’s breaches of the Partnership Agreement.

       (App. 36). The trial court clearly concluded that Shelby’s Landing had

       breached the Partnership Agreement and that all of the Defendants were liable

       for the breach under the Guaranty Agreement. Similarly, in Conclusions

       Numbers 115-117, the trial court concluded:

               115) The Defendants breached their obligations to the Plaintiffs.



       Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016   Page 15 of 20
                116) The Plaintiffs were harmed and damaged by the
                Defendant[s’] breaches.

                117) The Plaintiffs were damaged in the amount of
                $1,596,290.46.

       (App. 43). As the damages the trial court lists in Conclusion Number 117 equal

       the total damages the trial court awarded the Plaintiffs for the Defendants’

       breach of the Partnership Agreement, it is clear that the trial court did not

       award any additional damages for a misappropriation or theft claim.

       Accordingly, we conclude that the trial court’s judgment was supported by

       findings of fact and conclusions of law and, therefore, we will not vacate it.


       2. Attorney Fees

[23]   Next, the Defendants argue that the amount of attorney fees the trial court

       awarded the Plaintiffs was unreasonable.4 Specifically, they contend that it was

       not reasonable for the Plaintiffs’ attorneys to bill the Plaintiffs a collective

       $385,125.26 for 1,227 hours spent on a case that, per the Defendants’

       description, “was essentially resolved at the preliminary injunction and




       4
         The Defendants also argue that the trial court abused its discretion in admitting the Plaintiffs’ attorney fee
       affidavits and invoices at trial. They argue that the trial court should not have admitted the affidavits or
       invoices because they were hearsay. However, the Defendants raised the same objection at trial, and the trial
       court admitted the affidavits on the basis that they qualified as certified business records, which are an
       exception to the prohibition on hearsay. See Ind. Evidence Rule 803(6). The Defendants do not present any
       arguments challenging this conclusion. Indeed, they devote only a paragraph to their hearsay argument and
       do not support their argument with legal authority. On appeal, it is the appellants’ burden to formulate a
       cogent argument for the issues that they raise. See App. R. 46(A)(8)(a); Kapoor v. Dybwad, 49 N.E.3d 108, 121
       n.3 (Ind. Ct. App. 2015), trans. denied. We will not “become an advocate for a party, nor will we address
       arguments [that] are either inappropriate, too poorly developed or improperly expressed to be understood.”
       Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003). Because the Defendants have not developed a
       cogent argument to challenge the trial court’s admission of the attorney fee affidavits and invoices, we,
       therefore, find the issue waived and will not address it.

       Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016                      Page 16 of 20
       summary judgment stages.” (Defendants’ Br. 20). We review the amount a

       trial court awards for attorney fees for an abuse of discretion. Cavallo v. Allied

       Physicians of Michiana, LLC, 42 N.E.3d 995, 1008 (Ind. Ct. App. 2015). An

       abuse of discretion occurs when the trial court’s decision is clearly against the

       logic and effect of the facts and circumstances before it. Id.


[24]   Even where, as here, the parties have agreed to attorney fees by contract, the

       award of fees must be reasonable. Id. Judicial notice of the reasonableness of

       attorney fees is permitted in certain routine actions, such as dissolutions of

       marriage, in which modest fees are sought. Id. However, 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. This Court has noted

       that “‘the hours worked and the rate charged are a common starting point for

       determining the reasonableness of a fee,”’ but a trial court may consider a

       number of factors. Id. The trial court may look at the responsibility of the

       parties in incurring the attorney fees, and the trial judge has personal expertise

       he or she may use in determining reasonable attorney fees. Id. In addition,

       Indiana Professional Conduct Rule 1.5(a) delineates the following factors for

       determining a reasonable fee:


               (1) The time and labor required, the novelty and difficulty of the
               questions involved, and the skill requisite to perform the service
               properly;

               (2) The likelihood, if apparent to the client, that the acceptance of
               the employment will preclude other employment by the lawyer;



       Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016   Page 17 of 20
               (3) The fee customarily charged in the locality for similar legal
               services;

               (4) The amount involved and the results obtained;

               (5) The time limitations imposed by the client or by the
               circumstances;

               (6) The nature and length of the professional relationship with
               the client;

               (7) The experience, reputation, and ability of the lawyer or
               lawyers performing the services; and

               (8) Whether the fee is fixed or contingent.


       Id. at 1009-10.


[25]   Here, the trial court cited several factors for its award of attorney fees. First, it

       noted that it had “considered attorney invoices consisting of descriptions of the

       actual legal services performed, the hours incurred[,] and rates charged for

       services.” (App. 42). Then, the trial court reasoned that “[t]he case involved

       detailed and specific agreements, factual investigation, injunction and summary

       judgment motions and hearings, substantial non-party discovery and a trial on

       damages.” (App. 42-43). Further, the “Plaintiffs’ claims exceeded $2,700,000,

       [the] Defendants’ counter[-]claims sought over $4,000,000[,]” the rates

       Plaintiffs’ counsel charged were reasonable, and the services Plaintiffs’ counsel

       performed were “reasonable and necessary.” (App. 43).


[26]   The Defendants argue that the trial court abused its discretion in determining

       the amount of attorney fees to award the Plaintiffs because many of the

       Plaintiffs’ issues were resolved in the partial summary judgment. They contend

       Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016   Page 18 of 20
       that the Plaintiffs had limited discovery because they took one deposition that

       lasted only half of a day and performed little litigation because they spent less

       than a full day in court for the trial. Finally, they also argue that “the trial court

       should have compared PNC [Multifamily’s] legal expenses with the fee

       customarily charged in the locality for similar legal services.” (Defendants’ Br.

       22).


[27]   Contrary to the Defendants’ arguments—and as the trial court found—there

       was substantial discovery in this case. Although the Plaintiffs took only one

       deposition, the record is replete with the substantial and detailed financial

       records the Plaintiffs’ attorneys had to investigate in order to prove the

       Defendants’ liability under the Purchase Agreement—an issue that was not

       resolved through summary judgment. Also, the amount at controversy in both

       the claim and counter-claim was significant. We do not find it dispositive that

       the trial court did not compare PNC Multifamily’s legal expenses with the fee

       customarily charged in the locality for similar services, because the trial court

       was not obligated to address all of the factors listed in Indiana Professional

       Conduct Rule 1.5(a). See Cavallo, 42 N.E.3d at 1010. It is clear that the trial

       court addressed several of the Rule 1.5(a) factors, including the time and labor

       required, the novelty and difficulty of the questions involved, and the amount in

       controversy. Based on these factors, we conclude that the trial court did not

       abuse its discretion in awarding the Plaintiffs $385,125.26 for their attorney

       fees.


[28]

       Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016   Page 19 of 20
[29]   Affirmed.


       Kirsch, J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 73A01-1509-CC-1403 | December 21, 2016   Page 20 of 20
