                                                                      Aug 20 2015, 10:09 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Scott H. Duerring                                          Mark D. Boveri
      South Bend, Indiana                                        John H. Lloyd
                                                                 Krieg DeVault LLP
                                                                 Mishawaka, Indiana
                                                                 Stacy Walton Long
                                                                 Krieg DeVault LLP
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Uthman Cavallo, M.D.,                                     August 20, 2015

      Appellant-Defendant,                                      Court of Appeals Cause No.
                                                                71A05-1406-PL-285
              v.                                                Appeal from the St. Joseph Circuit
                                                                Court

      Allied Physicians of Michiana,                            Lower Court Cause No.
                                                                71C01-1104-PL-83
      LLC,
                                                                The Honorable Michael G. Gotsch,
      Appellee-Plaintiff.                                       Judge




      Pyle, Judge.


                                        Statement of the Case
[1]   Appellant/Defendant, Uthman Cavallo, M.D. (“Cavallo”), appeals the trial

      court’s order denying his request for a jury determination of the amount of

      attorney fees he owed Appellee/Plaintiff, Allied Physicians of Michiana, LLC

      Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015                Page 1 of 27
      (“Allied”), after Allied prevailed in a breach of contract claim against Cavallo.

      Cavallo and Allied were parties to an employment contract, and Allied filed a

      complaint against Cavallo alleging that he had breached the contract. Cavallo

      filed a counter-claim and a jury demand, alleging in the counter-claim that

      Allied, instead, had breached the contract. The trial court conducted a jury

      trial, and the jury found that Cavallo had breached the contract.


[2]   Subsequently, after the trial court entered judgment against Cavallo, Allied filed

      a petition requesting attorney fees, which was based on a fee-shifting provision

      in the contract. At a hearing regarding the petition, the trial court concluded

      that Cavallo’s pre-trial jury demand applied to the post-trial petition, and the

      court established a deadline for the parties to inform it whether they would like

      to empanel a new jury to consider the issue. Cavallo filed a request for a jury

      trial on the issue before the deadline, and Allied filed an objection to Cavallo’s

      jury request after the deadline. Thereafter, the trial court denied the jury

      request, concluding that Cavallo did not have a right to a jury trial, and

      awarded Allied $89,706.11 in attorney fees.


[3]   On appeal, Cavallo argues that: (1) Allied’s petition for attorney fees was

      barred by res judicata and waiver because Allied failed to present evidence on

      the issue at the trial on the underlying breach of contract claim; (2) the trial

      court erred when it denied Cavallo’s request for a jury trial to determine

      reasonable attorney fees because he had a right to a jury trial; and (3) the trial

      court erred in awarding Allied attorney fees because it did not hold a hearing to



      Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015   Page 2 of 27
      determine the reasonableness of the amount awarded and because the award

      was unreasonable. Also on appeal, Allied requests appellate attorney fees.


[4]   We conclude that Allied’s claim was not barred by res judicata or waiver

      because the issue of attorney fees could not necessarily have been raised during

      trial, such that res judicata or waiver should apply. We also conclude that the

      trial court did not err when it denied Cavallo a jury trial because Cavallo did

      not have a right to a jury trial on the reasonableness of attorney fees; nor did the

      trial court abuse its discretion in determining a reasonable amount of attorney

      fees to award to Allied. Finally, because it is undisputed that the contract

      between Cavallo and Allied provided for recovery of attorney fees, we grant

      Allied’s request for appellate attorney fees and remand for further proceedings

      so that the trial court may determine a reasonable amount.


      We affirm and remand for further proceedings.


                                                      Issues
      [5]     1. Whether Allied’s claim for attorney fees was barred by res
              judicata or waiver.

              2. Whether the trial court erred when it denied Cavallo’s request
              to empanel a jury to decide a reasonable amount of attorney fees.

              3. Whether the trial court abused its discretion in awarding Allied
              attorney fees.

              4. Whether Allied may recover appellate attorney fees.




      Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015   Page 3 of 27
                                                          Facts
[6]   Cavallo is a licensed medical doctor, and Allied is an Indiana limited liability

      company that provides professional medical and surgical services. Cavallo

      worked with a group called OB/GYN Associates of Northern America

      (“OB/GYN”) from 2001 until late 2009, at which time Allied purchased

      OB/GYN’s assets and entered into an employment agreement with Cavallo

      (“the Contract”). The Contract contained a covenant not to compete, including

      a fee-shifting provision applicable in the event that Allied prevailed in enforcing

      the covenant not to compete.1


[7]   On March 16, 2011, Allied filed a complaint against Cavallo, alleging that he

      had violated the covenant not to compete by opening a competing medical

      practice within twenty miles of Allied’s practice. The company requested

      damages, including the costs of the action and attorney fees, as well as




      1
        Although Allied included alleged excerpts of the Contract in its brief, neither party included a copy of the
      Contract in an appendix. We remind the parties that they are responsible for including the items necessary
      for review in their respective appendices. See Ind. Appellate Rule 50(A)(2); App. R. 50(A)(3). Appellants
      who fail to include the materials necessary for our review risk waiver of the affected issues or dismissal of the
      appeal. See Nasser v. State, 727 N.E.2d 1105, 1110 (Ind. Ct. App. 2000) (finding that Appellant had waived
      his sentencing argument because he had failed to include the presentence report in the record), trans. denied;
      Yoquelet v. Marshall Cnty., 811 N.E.2d 826 (Ind. Ct. App. 2004) (finding that the Appellant could not prove
      that the trial court erred in granting summary judgment when the Appellant failed to include all of the
      documents necessary for review in its Appendix). But see App. R. 49 (stating that “[a]ny party’s failure to
      include any item in an Appendix shall not waive any issue or argument”). Nevertheless, we have gleaned
      evidence of the Contract’s contents from the proceedings below.

      Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015                            Page 4 of 27
      preliminary and permanent injunctions prohibiting Cavallo from practicing at

      the competing medical practice. Cavallo filed a counterclaim, arguing that he

      had developed his competing medical practice with Allied’s approval and help

      and that Allied had breached the Contract when it ejected him from his office,

      sent him a cease and desist letter, and filed its complaint. Cavallo also

      demanded a jury trial.


[8]   From September 24-26, 2013, the trial court held a jury trial. At the conclusion

      of the trial, the jury found in favor of Allied. It awarded the company a

      judgment of $174,916.80, which did not include an amount for attorney fees

      because Allied had not introduced any evidence or argument regarding its

      attorney fees at trial.2 Subsequently, on October 16, 2013, Allied petitioned for

      an award of attorney fees totaling $89,706.11. Cavallo objected to the petition,

      arguing that the fee amount was unreasonable and that the request was

      untimely because Allied should have tried the issue of attorney fees before the

      jury.




      2
        The transcript from the underlying breach of contract trial was not requested or included in the record on
      appeal. Cavallo included the preliminary jury instructions in his Appellant’s Appendix, but not the final jury
      instructions. As a result, there is no evidence in the record that the jury was instructed to consider the issue
      of attorney fees.

      Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015                           Page 5 of 27
[9]    On December 18, 2013, the trial court conducted a hearing on the fee petition.

       The court found that, because the Contract specified that Allied could seek

       attorney fees in the event that it “prevailed” at trial, the cause of action for

       attorney fees did not necessarily arise until after the jury trial. (Tr. 4). Thus,

       the trial court concluded that Allied had not waived its attorney fee claim.

       However, the trial court also held that Cavallo’s pre-trial jury demand still

       applied to the fee claim. As a result, the trial court allowed the parties until

       January 15, 2014 to decide whether they desired a second jury to be empaneled

       to determine a reasonable amount of attorney fees.


[10]   On January 14, 2014, Cavallo filed a response to the trial court’s ruling, in

       which he requested a jury trial on the attorney fees. Allied filed an objection to

       Cavallo’s jury request on February 3, 2014. It argued that the trial court should

       deny the jury request because: (1) Cavallo’s previous jury demand applied only

       to his counterclaim rather than to Allied’s original complaint; and (2) Cavallo

       was not entitled to a jury on the reasonableness of attorney fees under Indiana

       Trial Rule 38 because the attorney fee claim was an equitable issue that did not

       trigger a right to a jury trial.


[11]   On May 21, 2014, the trial court entered an order denying Cavallo’s jury

       request and awarding Allied the $89,706.11 in attorney fees it had requested.

       The trial court found, as Allied had argued, that Cavallo was not entitled to a

       jury trial on the reasonableness of attorney fees under Trial Rule 38. The trial

       court also concluded that the amount of Allied’s fee request was reasonable

       based on the prevailing rate of legal services in the geographic location, the

       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015   Page 6 of 27
       types of legal issues presented, the reputation and experience of counsel, the

       time necessary to prepare for a multi-day jury trial involving professional

       experts, and the types of expenses incurred. Cavallo now appeals.


                                                      Decision
[12]   On appeal, Cavallo raises three issues: (1) whether Allied’s claim for attorney

       fees was barred by res judicata or waiver; (2) whether the trial court erred when

       it denied Cavallo’s request for a jury; and (3) whether the trial court abused its

       discretion in awarding Allied attorney fees. In response, Allied raises a fourth

       issue: whether we should award Allied appellate attorney fees. We will

       address each of these issues in turn.


       1. Res Judicata and Waiver

[13]   Cavallo contends that Allied’s fee claim was barred by the doctrine of res

       judicata, specifically claim preclusion, because it was “firmly interlaced with

       the breach of contract claim” such that Allied should have presented evidence

       on the claim at trial.3 (Cavallo’s Br. 7). He asserts that, because Allied had an




       3
         Cavallo appears to conflate the doctrines of res judicata and waiver as he claims that the attorney fee
       request was “waived” as a result of res judicata. (Appellant’s Br. 9). Because his argument primarily
       concerns res judicata, we will primarily address that issue. Nevertheless, because we find that an attorney fee
       request might not ripen prior to a judgment, we conclude that Cavallo’s waiver argument also fails. Waiver
       is defined as “the voluntary and intentional relinquishment of a known right.” Ryan v. Janovsky, 999 N.E.2d
       895, 901 (Ind. Ct. App. 2013), trans. denied. A court may not review an issue that is not ripe. See Thomas ex

       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015                         Page 7 of 27
       opportunity to adjudicate the issue at trial—and, indeed, raised the issue in its

       complaint—but failed to present any evidence on the fees, it could not petition

       for the fees after the trial court entered the final judgment. In response, Allied

       argues that its petition was timely, and therefore not barred by res judicata,

       because its request for fees was not ripe until it became a prevailing party.

       Allied notes that requesting attorney fees post-judgment is a widely-accepted

       procedure.


[14]   Preliminarily, we must note that Cavallo objected to Allied’s petition on

       grounds of waiver, not res judicata, below and therefore has waived any res

       judicata argument on appeal. Boatner v. State, 934 N.E.2d 184, 187 (Ind. Ct.

       App. 2010) (stating that a party may not object at trial on one ground and seek

       reversal on appeal based on another ground and that doing so results in waiver).

       Waiver notwithstanding, we do not agree that Allied was barred from

       requesting attorney fees post-judgment on the basis of res judicata.


[15]   The “doctrine of res judicata prevents the repetitious litigation of disputes that

       are essentially the same.” Kelly v. Kravec, 999 N.E.2d 433, 441 (Ind. Ct. App.




       rel. Thomas v. Murphy, 918 N.E.2d 656, 662-63 (Ind. Ct. App. 2009), reh’g denied, trans. denied. Thus, because
       we conclude here that the issue of attorney fees was not ripe below, Allied did not have the known right to
       raise the issue of attorney fees and, therefore, could not have waived it.

       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015                         Page 8 of 27
       2013) (quoting Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 703 (Ind. Ct.

       App. 2005), trans. denied). It is divided into two branches: claim preclusion,

       which Cavallo raises here, and issue preclusion. Dev. Serv. Alt., Inc. v. Ind.

       Family and Soc. Serv. Admin., 915 N.E.2d 169, 179 (Ind. Ct. App. 2009), trans.

       denied. Claim preclusion is relevant 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 parties. Kelly, 999 N.E.2d at 441(quoting Indianapolis

       Downs, LLC, 834 N.E.2d at 703). A “‘final judgment’” is one which “‘disposes

       of all claims as to all parties[.]’” Id. (quoting Ind. Appellate Rule 2(H)(1)); see

       also Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind. Ct. App. 2002) (quoting

       Hudson v. Tyson, 383 N.E.2d 66, 69 (1978)) (“A final judgment ‘disposes of all

       issues as to all parties, to the full extent of the court to dispose of the same, and

       puts an end to the particular case as to all of such parties and all of such

       issues.’”).


[16]   The following four factors must be satisfied in order for claim preclusion to

       apply:

                (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.


       Evergreen Shipping Agency Corp. v. Djuric Trucking, Inc., 996 N.E.2d 337, 340 (Ind.

       Ct. App. 2013) (quoting Hilliard v. Jacobs, 957 N.E.2d 1043, 1047 (Ind. Ct. App.

       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015    Page 9 of 27
       2011), reh’g denied, trans. denied, cert. denied), reh’g denied, trans. denied. The factor

       that Cavallo specifically raises is that “the matter now in issue was, or could

       have been, determined in the prior action.” Id. He claims that, because Allied

       raised its fee claim in its complaint, it “could have” adjudicated the matter

       below and, therefore, it should have been barred from doing so after the

       judgment was entered. Id.


[17]   The test generally used for determining whether or not an issue “could have

       been” decided previously, and as a result should be barred, is the identical

       evidence test—“whether identical evidence will support the issues involved in

       both actions.” Hilliard, 957 N.E.2d at 1047. Here, the determination of

       Allied’s breach of contract claim depended on the evidence regarding the

       Contract and Cavallo’s performance of the Contract. While Allied’s attorney

       fee claim also depended on the language of the Contract, it required additional

       evidence that the breach of contract claim did not require. Specifically, an

       award of attorney fees, even pursuant to a contract, must be reasonable. Stewart

       v. TT Commercial One, LLC, 911 N.E.2d 51, 58 (Ind. Ct. App. 2009), trans.

       denied. Rule 1.5 of the Indiana Rules of Professional Conduct sets out a number

       of factors for determining a reasonable fee, including:


               (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;
               (3) The fee customarily charged in the locality for similar legal
               services;

       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015     Page 10 of 27
               (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.


       Daimler Chrysler Corp. v. Franklin, 814 N.E.2d 281, 287-88 (Ind. Ct. App. 2004).

       In light of these factors, different evidence was necessary to determine Allied’s

       request for attorney fees than was necessary to prove the underlying breach of

       contract claim.


[18]   Moreover, we agree with Allied and the trial court that Allied was not required

       to produce evidence of its attorney fees at trial because the issue was not

       necessarily ripe for adjudication. Allied argues that under the contract it could

       only seek attorney fees if it were a prevailing party, and it could not become a

       prevailing party before it was adjudicated as such. Regardless of the terms of

       the contract, however, our Indiana Supreme Court has held that “[a] request for

       attorney[] 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.” R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453,

       460 (Ind. 2012). This holding is consistent with one of the factors the trial court

       must consider when determining whether an attorney fee is reasonable—the

       time and labor required for the matter. See Daimler Chrysler Corp., 814 N.E.2d at

       287-88. We conclude that, logically, an attorney may not know how much

       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015   Page 11 of 27
       time and labor a matter will require until the matter has reached its conclusion.

       Therefore, we are unwilling to hold that a party must request attorney fees

       before a matter has reached its conclusion.4 Instead, in light of the different

       evidence necessary to prove Allied’s breach of contract claim and the

       reasonableness of its attorney fees, as well as the fact that Allied’s attorney fee

       petition was not necessarily ripe before the end of the jury trial, we conclude

       that Allied’s attorney fees were not an issue that “could have been determined

       in the prior action” such that the issue should be barred under the doctrine of

       res judicata. Evergreen Shipping Agency Corp., 996 N.E.2d 337 at 340.


       2. Request for a Jury

[19]   Next, Cavallo argues that the trial court erred in denying his request for a jury

       to determine reasonable attorney fees. First, he asserts that Allied’s objection to

       his jury request was not timely because the trial court ordered that the parties

       respond regarding the necessity of a jury trial by January 15, 2014, and Allied

       did not file an objection to Cavallo’s jury demand until February 3, 2014.

       Alternatively, he argues that the claim for attorney fees was contractually-based




       4
        We are not holding that a request for attorney fees is never ripe before the conclusion of a matter. There
       may be factual circumstances permitting a party to request and introduce evidence of attorney fees at trial.
       However, that is not the case before us.

       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015                         Page 12 of 27
       and therefore legal, rather than equitable, in nature, such that he had a right

       under Trial Rule 38 to a jury trial on the issue.


[20]   In response, Allied contends that it was within the trial court’s discretion to

       consider the objection to Cavallo’s jury demand. Allied also argues that: (1)

       Cavallo’s pre-trial jury demand only applied to his counterclaim; and (2) the

       determination of reasonable attorney fees was equitable, rather than legal, in

       nature, and thus Cavallo did not have a right to a jury trial.


[21]   Preliminarily, we must address Cavallo’s procedural argument that the trial

       court erred in considering Allied’s objection to his jury request because it was

       untimely. In its December 18, 2013 hearing on the fee petition, the trial court

       determined that Cavallo’s pre-trial jury demand was applicable to the post-trial

       fee claim, even though the trial had already concluded. As a result, the trial

       court allowed the parties until January 15, 2014 to decide whether they desired

       a second jury to be empaneled to determine the issue of reasonable attorney

       fees. On January 14, 2014, Cavallo filed a response to the trial court’s ruling, in

       which he requested a jury trial on the attorney fees. Allied did not object to this

       response until February 3, 2014, well after the trial court’s December 18 hearing

       and the court’s January 15 deadline. As a result, Cavallo now argues that the

       trial court could not consider Allied’s objection because it was untimely.


[22]   However, even without consideration of Allied’s objection, the trial court still

       had discretion to change its ruling regarding the applicability of Cavallo’s pre-

       trial jury demand. We have previously concluded that a trial court has wide


       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015   Page 13 of 27
       discretion to correct errors, and we will reverse any such correction only for an

       abuse of that discretion. Paulsen v. Malone, 880 N.E.2d 312, 313 (Ind. Ct. App.

       2008). Accordingly, we conclude that it was within the trial court’s discretion

       to correct its decision in the December 18 hearing that Cavallo’s pre-trial jury

       demand applied to the fee claim.


[23]   Next, Cavallo argues that the trial court erred in denying his request for a jury

       because he had a right to a jury trial. In support of this argument, he cites

       Parrish v. Terre Haute Sav. Bank, 431 N.E.2d 132 (Ind. Ct. App. 1982), reh’g

       denied, trans. denied. In Parrish, the shareholders of R.P.S. Industries, Inc. signed

       a promissory note in exchange for a short term capital loan from Terre Haute

       Savings Bank. Id. at 133-34. The promissory note provided for payment of

       reasonable attorney fees in the event of a default on the loan. Id. at 138. A few

       months later, R.P.S. Industries did default on the note, and Terre Haute

       Savings Bank filed a claim to recover the remaining amount owed, as well as

       reasonable attorney fees. Id. at 134. The jury awarded the Bank a verdict for

       damages and attorney fees in the amount of $5,000. Id. at 138, 139. The

       attorney fees award was based on testimony from the Bank’s Collection

       Manager that the Bank’s attorney had told her his fee would be $5,000. Id. at

       139.


[24]   On appeal, we reversed the award of attorney fees, finding that the Bank

       Collection Manager’s testimony regarding what the attorney had told her he

       would charge was not sufficient evidence of the reasonableness of the fees. Id.

       at 139. We noted that, because the jury did not have expertise to determine the

       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015   Page 14 of 27
       value of the attorney’s work, it required more evidence or testimony of the

       value in order to determine a reasonable fee. Id. As a result, we remanded to

       the trial court to determine a reasonable fee. Id.


[25]   On rehearing, the Bank requested clarification regarding whether, on remand,

       the issue of reasonable attorney fees needed to be determined by a jury or the

       trial court. Parrish v. Terre Haute Sav. Bank, 438 N.E.2d 1, 2 (Ind. Ct. App.

       1982) (“Parrish II”). In our analysis, we cited Trial Rule 39, which provided

       that “[w]hen trial by jury has been demanded as provided in Rule 38, the action

       shall be designated upon the docket as a jury action. Issues upon which a jury

       trial is so demanded shall be tried by jury . . . .” T.R. 39. Based on this

       language, we held that, since the shareholders had demanded a jury trial, they

       were entitled to a jury trial on the issue of reasonable attorney fees upon

       remand. Id. at 3.


[26]   Allied argues that we should not rely on Parrish II for three reasons: (1)

       according to Allied, Parrish is distinguishable from the instant case because,

       there, the attorney fees “were not merely a recoverable cost if the bank

       succeeded in enforcing its rights under the promissory note, but rather they

       were a part of the bank’s damages[;]” (2) Cavallo demanded a jury trial with

       respect to his counter-claim rather than Allied’s claim; and (3), as the trial court

       concluded, Cavallo did not have a right to a jury trial under Trial Rule 38.


[27]   With respect to Allied’s first argument, that the attorney fees in Parrish were

       part of the Bank’s damages rather than a recoverable cost, we do not find a


       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015   Page 15 of 27
       distinction between the two cases. In both cases, the attorney fees were

       contractual in nature, and the prevailing party had to enforce its rights under

       the legal instrument in order to recover attorney fees. In the case of Parrish, the

       Bank had to prove that the shareholders had defaulted on the promissory note,

       and here Allied had to prove that Cavallo had breached the Contract. See

       Parrish, 431 N.E.2d at 138 (noting that the promissory note provided for

       payment of reasonable attorney fees in the event of default).


[28]   Next, Allied claims that Cavallo claimed a jury trial with respect to his

       counterclaim rather than Allied’s claim. Specifically, Allied argues that, under

       Trial Rule 38(B), Cavallo was required to make a jury demand as to Allied’s

       breach of contract claim within ten days of answering it, but he did not.

       Instead, according to Allied, he filed a separate counterclaim more than ten

       days after answering Allied’s complaint and therefore waived his right to

       demand a jury trial on the complaint. We do not find this argument persuasive

       because it is apparent from the record that Cavallo filed his counterclaim

       requesting the jury trial the same day that he filed his answer to Allied’s

       complaint and, so, was within the ten day time period. Further, because the

       trial court conducted a jury trial on the issues Allied raised in its complaint, we

       conclude that it has waived its objection. Kenwal Steel Corp. v. Seyring, 903

       N.E.2d 510. 516 (Ind. Ct. App. 2009) (stating that waiver is “an election by one

       to forego some advantage he might have taken or insisted upon”).


[29]   Finally, Allied argues that we should not rely on Parrish II because the

       determination of a reasonable amount of attorney fees sounds in equity and

       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015   Page 16 of 27
       Cavallo thus did not have a right to a jury on that issue under Trial Rule 38.

       This argument was also the basis for the trial court’s denial of Cavallo’s jury

       request, as the trial court found that Cavallo had not proven that the

       determination of a reasonable amount of attorney fees would have been an

       action at law—as opposed to an action in equity—prior to 1852 such that it

       would receive a jury trial under Trial Rule 38. This argument is based on the

       language of Trial Rule 38, which provides that:


               Issues of law and issues of fact, in causes that prior to the
               eighteenth day of June, 1852, were of exclusive equitable
               jurisdiction shall be tried by the court; issues of fact in all other
               causes shall be triable as the same are now triable. In case of the
               joinder of causes of action or defenses which, prior to said date,
               were of exclusive equitable jurisdiction with causes of action or
               defenses which, prior to said date, were designated as actions at
               law and triable by jury—the former shall be triable by the court,
               and the latter by a jury, unless waived.


       Under Trial Rule 39, [i]ssues upon which a jury trial is so demanded [under

       Trial Rule 38] shall be tried by a jury,” subject to certain exceptions listed in the

       rule. Allied has not alleged that any of the Trial Rule 39 exceptions apply here.


[30]   In Songer v. Civitas, 771 N.E.2d 61 (Ind. 2002), our Indiana Supreme Court went

       to great lengths to clarify the issue of when a party is entitled to a jury trial

       under Trial Rule 38. There, the court explained that:


               The right to a jury trial holds a special place in the system of
               justice, and we guard it against encroachment. That said, it has
               long been agreed that Article I, Section 20 [of the Indiana
               Constitution] serves to preserve the right to a jury trial only as it

       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015   Page 17 of 27
               existed at common law. Drawing as we do from English
               common law roots and England’s symbiotic system of law courts
               and equity courts, it is a well-settled tenet that a party is not
               entitled to a jury trial on equitable claims. . . . Trial Rule 38(A) is
               thus necessarily the starting point. The policy described by Rule
               38(A) has existed in substantially the same form for over 120
               years, commencing as a legislative enactment. See Rev. St. 1894,
               Sec. 412; Rev. St. 1881, Sec. 409 (nearly identical statutory
               forerunners of Trial Rule 38(A)). This legislative enactment and
               the later judicial rule have informed the historic understanding of
               the Constitutions meaning on the subject.


       Id. at 63-64. In other words, causes of action that would have been tried in

       equity before 1852 may not be tried before a jury, and causes of action that

       would have been considered “legal” as opposed to equitable before 1852 may

       be tried before a jury. See id. Accordingly, the question we must consider is

       whether the determination of a reasonable amount of attorney fees is equitable

       in nature.


[31]   This issue has never been addressed in Indiana. However, we find federal

       precedent on the issue of a right to a jury trial under the Seventh Amendment of

       the United States Constitution persuasive. As under Trial Rule 38 and the

       Indiana Constitution, the Seventh Amendment protects the right to a jury trial

       in “[s]uits at common law,” U.S. Const. amend XII, which our Indiana

       Supreme Court has explained “refers to ‘suits in which legal rights [are] to be

       ascertained and determined, in contradistinction to those where equitable rights

       alone [are] recognized, and equitable remedies [are] administered.’” Chauffeurs,

       Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 565 (1990) (quoting


       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015    Page 18 of 27
       Parsons v. Bedford, 28 U.S. 433, 447 (1830)) (emphasis in original). The nature

       of the issues presented and the remedies sought determines whether an action

       qualifies as “legal.” J.R. Simplot v. Chevron Pipeline Co., 563 F.3d 1102, 1115

       (10th Cir. 2009).


[32]   Traditionally, an ordinary breach of contract claim is considered legal in nature.

       Id. However, federal circuit courts have held that attorney fees awarded as an

       element of “costs” to a prevailing party in a breach of contract claim are not

       legal in nature. Id. In part, this difference is based on the nature of an attorney

       fee award. The general rule regarding attorney fees—known as the “American

       Rule”—is that each party bears its own attorney fees. McGuire v. Russell Miller,

       Inc., 1 F.3d 1306, 1312 (2nd Cir. 1991). Parties may agree by contract to permit

       recovery of attorney fees. Id.; Stewart, 911 N.E.2d at 58. However, because

       there is no common law right to recover attorney fees, federal courts have held

       that the Seventh Amendment does not guarantee a trial by jury to determine the

       amount of reasonable attorney fees. Resolution Trust Corp. v. Marshall, 939 F.2d

       274, 279 (5th Cir. 1991); Empire State Ins. Co. v. Chafetz, 302 F.2d 828, 830 (5th

       Cir. 1962). See Eastern Trading Co. v. Refco, Inc., 229 F.3d 617, 627 (7th Cir.

       2000) (finding that the determination of a reasonable award of attorney fees

       when the award was contractually-based was an issue “to be resolved after the

       trial on the basis of the judgment entered at trial,” not an issue triable by the

       jury), amended on denial of reh’g.


[33]   Notably, the Second Circuit has recognized a distinction in cases where an

       attorney fee claim is based on a contractual provision. In McGuire, the Second

       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015   Page 19 of 27
       Circuit Court of Appeals distinguished between the determination of whether a

       party may recover attorney fees at all and the determination of the reasonable

       amount of fees. McGuire, 1 F.3d at 1313. The court said that a party has a right

       to a jury trial on the former but not the latter. Id. Its rationale was that:


               an action pursuant to a contract presents traditional common-law
               contractual issues which should be submitted to a jury . . . but []
               the subsequent determination of the amount of attorneys’ fees
               owed presents equitable issues of accounting which do not
               engage a Seventh Amendment right to a jury trial.

                                                  *        *       *
               [D]efendants’ counterclaim for attorneys’ fees was a claim for a
               contractual “legal right,” and plaintiff had the right to have a jury
               decide whether defendants should recover attorneys’ fees under
               the agreement. However, the subsequent action in this case to
               determine a reasonable amount of attorneys’ fees was not an
               action to enforce “legal rights” pursuant to a contract; rather,
               such an action was equitable in nature.

       Id. at 1314-15.


[34]   Here, Cavallo does not dispute that Allied may recover attorney fees under the

       Contract. Therefore, the distinction that the Second Circuit recognized is not

       relevant. Instead, it is only relevant that federal courts have held that a party

       does not have a right to a trial by jury to determine the reasonable amount of

       fees. See Resolution Trust Corp., 939 F.2d at 279; Empire State Ins. Co., 302 F.2d

       at 830; McGuire, 1 F.3d at 1313. In light of this precedent, we conclude that

       Cavallo did not have a right to a jury trial to determine a reasonable amount of

       attorney fees. Because, as stated in the federal jurisprudence, such a right was


       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015   Page 20 of 27
       not recognized at common law and is generally considered equitable in nature,

       we conclude that his request would likewise fail under Trial Rules 38 and 39.5


[35]   We note that this conclusion is seemingly at odds with our conclusion in Parrish

       II. However, here we are only addressing whether a party has a right to a jury




       5
         Claims in equity can be traced back to England. Henry L. McClintock, HANDBOOK OF THE PRINCIPLE OF
       EQUITY 1 (2d ed. 1948). Traditional law courts developed rigid procedures for accepting and deciding cases
       based on earlier cases, which became known as the common law. Id. It was not uncommon for citizens to
       conclude that the common law courts were “new and crude, undeveloped and incomplete, harsh and
       unrefined in many of its details.” Charles Herman Kinnane, A FIRST BOOK ON ANGLO-AMERICAN LAW 231
       (1932). In response, the king “exercised the prerogative of interfering with the ordinary legal procedure to
       meet the needs of special cases.” McClintock at 5. Employing an independent sense of moral justice, these
       royal chancellors would hear and decide cases without regard for the common law. Kinnane at 231. These
       chancery courts became known as courts of equity. Id. The common law courts, believing in a strict
       interpretation of rules of pleading and procedure, believed that the equity courts were a royal encroachment
       on the independence of the “true” judiciary. Id. The suspicion surrounding the king’s equity courts, followed
       the colonists to America. Id. In fact, the colonies of Massachusetts and Pennsylvania did not establish
       separate equity courts seemingly unable to “forget how the Court of Chancery had once been made into a
       tool for the furtherance of royal power.” Id. at 323. However, most colonial legislatures understood the
       value of allowing judges to fashion remedies outside the rigid bounds of common law and statutes, and most
       states have subsequently established a single system of courts with jurisdiction to hear both legal and
       equitable claims. Id. Eventually, our Federal Constitution enshrined this ideal in Article III, Section 2,
       Clause 1, which states that the “judicial Power shall extend to all Cases, in Law and Equity . . . .” In 1938,
       the United States Supreme Court and Congress adopted the Federal Rules of Civil Procedure which
       established a single system for resolving legal and equitable claims. “Purely procedural impediments to the
       presentation of any issue by any party, based on the difference between law and equity, was destroyed.” Ross
       v. Bernhard, 396 U.S. 531, 539-540 (1970). Indeed, Indiana’s Constitution of 1816 provided that the judicial
       power in this state shall extend to “matters of law and equity . . . .” IND. CONST. of 1816, art. V, § 1. While
       this language was removed from Indiana’s current 1851 Constitution, “the General Assembly, following the
       recommendations of a Civil Code Study Commission created in 1967, repealed a variety of antiquated trial
       procedural statutes and enacted “rules of civil procedure” that were modeled substantially on the Federal
       Rules of Civil Procedure. Budden v. Bd. of School Com’rs of City of Indianapolis, 698 N.E.2d 1157, 1163 (Ind.
       1998). The upshot of this history behind the elimination of most procedural differences between legal and
       equitable claims is that the most important distinction remains: whether a party is entitled to a jury trial for
       an equitable claim. Because the determination of a reasonable amount of attorney fees is an issue that was
       not available at common law, it is equitable and does not carry an entitlement to a jury trial.

       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015                         Page 21 of 27
       trial to determine a reasonable amount of attorney fees under Trial Rule 38.

       There are instances where a jury may decide whether the amount of an attorney

       fee award is reasonable, such as where the parties have stipulated to a jury

       determination on the issue or contractually agreed to such a jury determination.

       47 AM. JUR. 2D Jury § 47 (2015). We are only addressing a situation where (1)

       attorney fees have been claimed pursuant to a contractual provision and (2) the

       parties do not have an agreement that a jury may decide the reasonable amount

       of attorney fees.


       3. Attorney Fees


[36]   Alternatively, Cavallo argues that the trial court abused its discretion in

       awarding Allied attorney fees. His argument has two parts: (1) that the trial

       court abused its discretion in awarding the fees without holding a hearing and

       (2) that the trial court abused its discretion because the amount of fees it

       awarded was not reasonable.


[37]   When reviewing an award of attorney fees, we apply the clearly erroneous

       standard to factual determinations, review legal conclusions de novo, and

       determine whether the decision to award fees and the amount of the award

       constituted an abuse of the trial court’s discretion. Smith v. Foegley Landscape,

       Inc., 30 N.E.3d 1231, 1239 (Ind. Ct. App. 2015). This is because a trial court

       has broad discretion in awarding attorney fees. Benaugh v. Garner, 876 N.E.2d

       344, 347 (Ind. Ct. App. 2007), trans. denied. We will find an abuse of that




       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015   Page 22 of 27
       discretion only when the trial court’s decision is clearly against the effect of the

       facts and circumstances before the court. Smith, 30 N.E.3d at 1239.


[38]   First, Cavallo argues that the trial court abused its discretion because it failed to

       hold a hearing to determine the reasonableness of attorney fees. Although the

       trial court held a hearing on the petition on December 18, 2013, the primary

       issue at the hearing concerned whether Cavallo had a right to a jury trial.

       Neither of the parties presented any evidence or argument regarding the

       reasonableness of Allied’s requested fees of $89,706.11. However, Allied did

       attach to its petition affidavits extensively documenting its counsels’ time on the

       case. In spite of this evidence, Cavallo argues that the trial court’s decision was

       an abuse of discretion absent a hearing.


[39]   Cavallo cites to Stewart to support his argument that a trial court must hold a

       hearing to determine reasonable attorney fees. However, we find that the

       Stewart Court remanded for a hearing on the issue of attorney fees because there

       was no evidence in the record of the time the attorney had expended or the

       rates charged by the attorney, not because the trial court had failed to hold a

       hearing. See Stewart, 911 N.E.2d at 59. Instead, we find the language in Wilcox

       Lumber Co., Inc. v. The Andersons, Inc., 848 N.E.2d 1169, 1171 (Ind. Ct. App.

       2006), persuasive. There, we stated that “although a hearing on attorney fees is

       advisable in complex cases, it is not required in routine cases[.]” Id. (emphasis

       added). Even though the instant case is arguably complex, not routine, this

       language in Stewart indicates that a hearing is merely “advisable”—not

       required—even in a complex case.

       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015   Page 23 of 27
[40]   This interpretation is consistent with our holding in Nesses v. Specialty Connectors

       Co., Inc., 564 N.E.2d 322, 328 (Ind. Ct. App. 1990). There, although the trial

       court did hold a hearing on attorney fees, the parties did not provide a transcript

       of the hearing on appeal. Id. Even without the transcript, we held that the

       judge’s knowledge of the proceedings and counsels’ submitted affidavits of

       billing statements, which included the dates, times, fees, and nature of the

       services rendered, were sufficient to determine reasonable attorney fees. Id. at

       326, 328. In light of this precedent, we conclude that the detailed billing

       statements Allied provided the court here, combined with the trial court’s

       knowledge of the proceedings, were sufficient for the trial court to determine

       reasonable attorney fees. Accordingly, the trial court did not abuse its

       discretion by failing to hold another hearing on the fees.


[41]   Second, Cavallo argues that the amount of attorney fees the trial court awarded

       Allied was unreasonable because it was “a fairly straightforward contract

       dispute with no real novel questions of law” and because the trial court did not

       consider the Indiana Rules of Professional Conduct’s factors for determining

       the reasonableness of an attorney fee award. (Cavallo’s Br. 13). We review the

       amount a trial court awards for attorney fees for an abuse of discretion. Storm

       Damage Specialists of America v. Johnson, 984 N.E.2d 660, 667 (Ind. Ct. App.

       2013). 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.


[42]   Notably, even where, as here, the parties have agreed to attorney fees by

       contract, the award of attorney fees must be reasonable. Bruno v. Wells Fargo

       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015   Page 24 of 27
       Bank, N.A., 850 N.E.2d 940, 950 (Ind. Ct. App. 2006). 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. Smith, 30 N.E.3d at

       1240. 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.


[43]   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. Stewart, 911 N.E.2d 51 at 59. 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. Weiss v. Harper, 803 N.E.2d 201, 208 (Ind. Ct. App.

       2003). In addition, as stated above, 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;
               (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;


       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015   Page 25 of 27
               (7) The experience, reputation, and ability of the lawyer or
               lawyers performing the services; and
               (8) Whether the fee is fixed or contingent.


[44]   Here, Cavallo argues that the trial court abused its discretion because it did not

       consider each of the factors listed in Indiana Professional Conduct Rule 1.5(a)

       and because the amount awarded was unreasonable. We disagree. First,

       Cavallo does not cite any authority for the proposition that the trial court was

       required to consider every factor in Rule 1.5(a), and we do not find any such

       requirement. To the contrary, the first comment to the rule provides that “[t]he

       factors specified in (1) through (8) are not exclusive. Nor will each factor be

       relevant in each instance.” Ind. Professional Conduct Rule 1.5(a), cmt.

       Similarly, our Indiana Supreme Court has stated that “our Rules of Professional

       Conduct give us guidance as to factors to be considered in determining the

       reasonableness of attorney fees.” Order for Mandate of Funds Montgomery Cnty.

       Council v. Milligan, 873 N.E.2d 1043, 1049 (Ind. 2007) (emphasis added). This

       language does not imply a mandatory requirement.


[45]   In addition, it is clear that the trial court did consider several of the factors set

       out in the rules of professional conduct. The court found that the amount of

       attorney fees requested was


               based on the prevailing rate of legal services in this geographical
               location, and that the request for fees and expenses [was]
               otherwise reasonable based on the types of legal issues presented,
               the reputation and experience of counsel, the time necessary to
               prepare for a multi-day jury trial involving professional experts,
               and the types of expenses incurred.

       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015    Page 26 of 27
       (App. 20). Also, the court reviewed affidavits Allied’s counsel had submitted

       that extensively documented the work each of Allied’s attorneys performed on

       the matter, including the hours they worked, the hourly rates they charged, the

       nature of their services, and the legal issues involved. In light of this evidence,

       we conclude that the trial court did not abuse its discretion in determining the

       reasonableness of the attorney fees it awarded Allied.


       4. Appellate Attorney Fees

[46]   Finally, Allied requests that we award it appellate attorney fees for the work

       that its attorneys completed in this appeal. We have previously held that when

       a contract provision provides that attorney fees are recoverable, appellate

       attorney fees may also be awarded. Humphries v. Ables, 789 N.E.2d 1025, 1036

       (Ind. Ct. App. 2003). As it is undisputed here that the Contract provides for

       attorney fees in the event that Allied prevails in enforcing the Contract, and

       Allied has prevailed on appeal, we grant Allied’s request and remand to the trial

       court for a determination of reasonable appellate attorney fees to award Allied.


[47]   Affirmed and remanded for further proceedings.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 71A05-1406-PL-285 | August 20, 2015   Page 27 of 27
