                                                                       Dec 22 2015, 8:28 am




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEES
John P. Reed                                               Edward R. Hall
Jonathan Halm                                              Merrillville, Indiana
Abrahamson Reed & Bilse
                                                           Gerald M. Bishop
Hammond, Indiana
                                                           Merrillville, Indiana
William Lazarus
Oakland, California



                                            IN THE
    COURT OF APPEALS OF INDIANA

I.A.E., Inc. and William Lazarus,                          December 22, 2015

Appellants-Defendants/Cross-Appellees,                     Court of Appeals Case No.
                                                           45A05-1503-PL-100
        v.                                                 Appeal from the Lake Superior
                                                           Court

Edward R. Hall and Gerald M.                               The Honorable Calvin D. Hawkins,
                                                           Special Judge
Bishop,
                                                           Cause No. 45D02-1308-PL-32
Appellees-Plaintiffs/Cross-Appellants.




Riley, Judge.




Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015                   Page 1 of 39
                                    STATEMENT OF THE CASE

[1]   Appellants-Defendants/Cross-Appellees, I.A.E., Inc. (IAE) and William

      Lazarus (Attorney Lazarus) appeal the trial court’s summary judgment in favor

      of Appellees-Plaintiffs/Cross-Appellants, Edward R. Hall (Attorney Hall) and

      Gerald M. Bishop (Attorney Bishop), awarding them attorney fees and

      expenses arising from their representation of IAE in the underlying cause

      against the Board of Works of the City of Lake Station (Lake Station). 1


[2]   We reverse in part, affirm in part, and remand.


                                                     ISSUES

[3]   IAE raises three issues on appeal, which we restate as follows:


          (1) Whether the trial court properly awarded attorney fees pursuant to the

              guidelines in Galanis v. Lyons & Truitt, 715 N.E.2d 858 (Ind. 1999);

          (2) Whether Attorney Hall is entitled to an abuse of process claim; and

          (3) Whether the trial court abused its discretion when it excluded the

              testimony of IAE’s expert witness.


      Attorney Lazarus raises one issue on appeal, which we restate as: Whether the

      trial court erred in denying his motion for partial summary judgment, seeking

      fees of 10% of IAE’s recovery in the underlying cause.




      1
       We hereby deny, with the same date as this opinion, Appellants’ motion for oral argument, Attorney
      Bishop’s motion to strike, and Attorney Hall’s motion to file amended cross-appellant’s appendix.

      Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015                   Page 2 of 39
      On Cross-Appeal, Attorney Hall and Attorney Bishop raise one issue, which we

      restate as: Whether they are entitled to appellate attorney fees in accordance

      with Indiana Appellate Rule 66(E).


                           FACTS AND PROCEDURAL HISTORY

[4]   This is a saga of unremunerated attorneys, a disgruntled client, and the grant of

      a sizeable damage award. Although the factual and procedural history of this

      case is labyrinthine, a full recitation of the events leading to this third appeal is

      necessary to appreciate the tortured and convoluted road this case has travelled.


[5]   On May 18, 2000, Ramamurty Talluri (Talluri), the president of IAE, retained

      the services of Attorney Bishop to represent IAE in a lawsuit against “Lake

      State [sic], Indiana, for breach of contract, entered into on June 19, 1990.”

      (Appellant’s App. p. 575). The retainer contract provided for a contingent fee

      of “25% of the amount recovered.” (Appellant’s App. p. 575). Attorney Bishop

      filed the Complaint, which was assigned to Judge Svetanoff at the superior

      court of Lake County, sitting in Gary, Indiana. On August 11, 2003, the trial

      court granted summary judgement to Lake Station. In the letter to his client,

      Attorney Bishop warned Talluri about the importance of timely appealing the

      decision and informed Talluri that he did “not intend to automatically appeal

      the ruling under our current fee arrangement.” (Appellant’s App. p. 1269). On

      September 4, 2003, Attorney Bishop proposed a new fee agreement by which he

      would pursue an appeal “on a contingent fee basis of 50% of any amount

      recovered.” (Appellant’s App. p. 1270). After verbally agreeing and after


      Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 3 of 39
      Attorney Bishop had filed the notice of appeal, Talluri rejected the proposal and

      contacted Attorney Edward Hall (Attorney Hall) to pursue the appeal on IAE’s

      behalf.


[6]   On September 29, 2003, Attorney Hall and Talluri entered into an attorney fee

      agreement by which Attorney Hall would pursue the “appeal [in] IAE v. City of

      Lake Station” for a “fee to be 33 1/3% of any recovery,” in addition to an

      hourly fee of $150 (2003 Agreement). (Appellant’s App. p. 371). Attorney

      Bishop withdrew from the case on October 2, 2003, and on October 17, 2003,

      he filed a notice of attorney lien, requesting payment pursuant to the retainer

      contract.


[7]   On November 3, 2004, after fully briefing the case on appeal and an oral

      argument before the appellate bench, Attorney Hall secured a reversal of the

      trial court’s grant of summary judgment in favor of Lake Station. See IAE Inc.

      Consulting Engineers v. Bd of Works of the City of Lake Station et al., No. 45A03-

      0310-CV-418 (Ind. Ct. App. Nov. 3, 2004). Finding issues of material fact that

      required resolution by a trier of fact, this court remanded the cause for trial. See

      id. at 2. Our supreme court denied transfer. In preparation for a jury trial,

      Attorney Hall and Talluri entered into a new contingency fee agreement in

      August 2005 (2005 Agreement), calling for a fee of 40% of any recovery and

      asserting that the lien filed by Attorney Bishop was solely IAE’s responsibility.

      On June 16, 2010, after a two-week trial, the jury returned a verdict of $965,300

      in favor of IAE. On July 13, 2010, after the jury verdict, Lake Station filed a

      notice of appeal.

      Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 4 of 39
[8]   Wanting to review his responsibility with respect to this post-trial appeal,

      Attorney Hall attempted to locate the 2005 Agreement. However, the banker’s

      box that should have contained both the 2003 and 2005 Agreements was empty

      and Attorney Hall did not keep a signed copy of either Agreement. During the

      first week of July 2010, Attorney Hall met with Talluri to negotiate a new fee

      agreement to pursue the second appeal, seeking a contingency fee of 45%.

      Talluri refused to sign the proposed agreement and over the next several weeks,

      Attorney Hall and Talluri exchanged numerous emails, discussing the terms of

      the new fee proposal. On July 27, 2010, the attorney for Lake Station contacted

      Attorney Hall, advising him that Talluri was discussing settlement terms by

      calling the mayor directly. Upon learning of Talluri’s attempt to settle the case,

      Attorney Hall filed a notice of attorney’s lien on July 30, 2010, which was

      subsequently amended on September 23, 2011. When the email exchange

      between Attorney Hall and Talluri failed to reach a compromise on a new fee

      agreement, Attorney Hall filed a complaint for declaratory judgment in small

      claims court, presided by Judge Michael Pagano (Judge Pagano), requesting a

      declaration

              A. That the scope of work contemplated by the 2003 [Agreement] has
                 been completed.
              B. The parties’ action since the Court of Appeals’ decision in 2004
                 have merged the 2005 [A]greement into the 2003 [A]greement and
                 that [A]ttorney Hall is entitled to the 40% for handling the trial
                 when and if recovery is made. Attorney Hall has completed all of
                 his respective duties under the 2005 [A]greement and until the
                 matter is disposed of by the Court of Appeals in this second appeal,
                 he has no further obligation of representation of the defendant
                 absent a new agreement to do so.

      Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 5 of 39
               C. As the defendant has refused the offer by [A]ttorney Hall for
                  representation in the newest appeal, [Attorney] Hall is not bound
                  to supply further representation without remuneration and has no
                  obligation to pay IAE for its newest lawyer.
               D. In the alternative, if this court determines that there was no 2005
                  [Agreement], plaintiff is entitled to the agreed 33 1/3%
                  contingency fee for handling the first appeal AND a quantum meruit
                  claim for his time expended beyond the first appeal at the 2003
                  contract rate of $150.00/hr.
       (Appellant’s App. p. 139).


[9]    On September 1, 2010, Attorney Lazarus and Talluri entered into a fee

       agreement to represent IAE in the appeal against Lake Station. The terms of

       the agreement provided for a contingency fee of “8 percent of Talluri’s recovery

       and an additional 2 percent [] if briefs on the appeal are also filed in the Indiana

       Supreme Court.” (Appellant’s App. p. 1349). The agreement also provided

       that in event of reversal by the Indiana Court of Appeals, Attorney Lazarus

       would receive 45% if litigation continued. In addition, Attorney Lazarus would

       receive an hourly rate of $350 to represent Talluri in any proceedings regarding

       attorney fees to either Attorneys Hall or Bishop.


[10]   On December 18, 2010, Judge Pagano conducted a hearing on Attorney Hall’s

       complaint for declaratory judgement. During the hearing, Judge Pagano

       disclosed that, at an Inns of Court meeting, he and Attorney Hall had discussed

       the underlying case of IAE against Lake Station prior to the trial before Judge

       Svetanoff. Clarifying his comment, Judge Pagano noted that he “get[s] calls []

       on a regular basis about questions on cases that do not pend before” him.

       (Appellant’s App. p. 1419). After Judge Pagano affirmed that he did not get

       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015    Page 6 of 39
       paid for this advice, Attorney Lazarus requested a change of judge. Attorney

       Hall’s complaint for declaratory judgment was subsequently assigned to Judge

       William Davis (Judge Davis). Again, Attorney Lazarus sought a change of

       judge and the case was assigned to Judge Jeffrey Dywan (Judge Dywan).


[11]   On April 4, 2012, Judge Dywan issued his judgment on Attorney Hall’s

       complaint, declaring that

               Counsel advised the [c]ourt that they were in agreement that the only
               issue for determination by the [c]ourt was whether there was a 2005
               contingent fee contract entered into between Attorney Hall and [IAE]
               and whether that contingent fee agreement is valid and enforceable.
               The amount of fees to be recovered by Mr. Hall from [IAE] is a matter
               left for the decision before Honorable Gerald Svetanoff in the
               underlying litigation in Case No. 45D04-0009-CP-308. It is essential
               that Judge Svetanoff resolve that issue because there are other
               attorneys who have claims for attorney fees due from [IAE] arising out
               of other contingent fee agreements in the underlying litigation.
               Having considered the evidence, the [c]ourt now finds that Mr. Hall
               and [IAE] entered into an Attorney-Client Fee Agreement on
               September 29, 2003. After the successful appeal in that matter,
               [Attorney] Hall presented a new contingent fee agreement to Mr.
               Talluri for [IAE]. Mr. Talluri, on behalf of [IAE], signed that second
               contingent fee agreement regarding the same matter on August 4,
               2005. The second contingent fee agreement substantially changed the
               terms of the attorney-client relationship regarding fees to be paid the
               attorney for work in the case.
               Because the attorney-client relationship already existed at the time
               [Attorney] Hall presented the second fee agreement to [IAE], that
               agreement is presumptively invalid. [Attorney] Hall has not sustained
               his burden to demonstrate that the second fee agreement was fair and
               reasonable, that Mr. Talluri was advised of his right to seek the advice
               of independent counsel, and that Mr. Talluri’s execution of that
               agreement was free of the undue influence of [Attorney] Hall. As a
               result, the second fee agreement is not enforceable.

       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015       Page 7 of 39
               IT IS NOW THEREFORE ORDERED, ADJUDGED AND
               DECREED by the [c]ourt as follows:
               1. [Attorney Hall] and [IAE] entered into an Attorney-Client Fee
                  Agreement on September 29, 2003. The agreement is valid and
                  enforceable.
               2. The contingent fee agreement of August 4, 2005, prepared by
                  [Attorney] Hall and signed by Mr. Talluri is not enforceable.
               3. The amount of fees due Mr. Hall under the September 29, 2003 fee
                  agreement, and the amounts due any of the other attorneys who
                  were employed by Mr. Talluri in connection with the underlying
                  matter in Lake Superior Court, Civil Division Room Four, is left to
                  the determination of the Judge of Civil Division Room Four
                  [Judge Svetanoff].
       (Appellant’s App. pp. 151-52).


[12]   Following Attorney Lazarus’ motion to correct error on behalf of IAE on April

       30, 2012, Judge Dywan entered an order in the declaratory judgment action on

       May 17, 2012, denying the motion and clarifying as follows:

               [IAE] entered into two contingent fee agreements with [Attorney]
               Hall, a contingent fee agreement with [Attorney] Bishop, and a final
               contingent fee agreement with [Attorney] Lazarus. As stated in
               Galanis v. Lyons & Truitt, 715 N.E.2d 858 (Ind. 1999), [IAE] should
               only be required to pay one contingent fee. The amount of fees
               payable to either Attorneys Bishop or Hall in this case, and the effect
               of those fees due to [Attorney] Lazarus are all to be determined by the
               Lake Superior Court, Civil Division Room Number Four, applying the
               rules as set forth in Galanis. Civil Division Room Four has the
               authority and will weigh the efforts expended by the various attorneys
               in this case in determining what amounts are due to each attorney.
               [Attorney] Lazarus’ arguments regarding set-off and/or [Attorney]
               Hall’s alleged breach of the agreements should be made to the Judge in
               Civil Division Room Number Four.
       (Appellant’s App. p. 935).



       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 8 of 39
[13]   In compliance with Judge Dywan’s directive that the amount of attorney fees

       needed to be decided by Judge Svetanoff, Attorney Lazarus, on behalf of IAE,

       filed a motion to decide attorneys’ liens based on contract on August, 17, 2012.

       In its motion, IAE moved to “allocate attorney’s fees in this case based upon

       the express written fee agreements between the parties” and to “award its

       former [Attorney] Hall a one-third fee out of its recovery from Lake Station,

       minus the 10 percent fee it owes its current counsel for defending Lake Station’s

       appeal of the judgement entered in IAE’s favor in June 2010.” (Appellant’s

       App. pp. 77, 78). On September 13, 2012, IAE requested a summary ruling on

       its motion and on October 9, 2012, Attorney Hall filed a motion to intervene as

       of right.


[14]   On October 24, 2012, Judge Svetanoff conducted a hearing on IAE’s motion.

       During the hearing, Attorney Lazarus, on behalf of IAE, argued that Attorney

       Bishop’s claim for attorney fees was a separate issue which should be filed as a

       separate cause. IAE and Lake Station also submitted an agreed order, in which

       both parties stipulated to reduce the jury verdict from $965,300 to $776,400.

       Attorney Hall objected to this agreed order as he perceived a violation of

       Indiana Code section 24-4.6-1-104.


[15]   On January 14, 2013, as amended by order on February 4, 2013, Judge

       Svetanoff issued his Order, holding, in pertinent part:

               7. This dispute between IAE and [Attorney] Hall boils down to one
               essential issue: whether [Attorney] Hall breached his agreement with
               IAE by refusing to represent IAE in Lake Station’s appeal of the jury
               verdict, thereby permitting IAE to pay to [Attorney] Hall fees in the

       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015     Page 9 of 39
        amount of 33 1/3% of the recovery, less the amount of fees it is
        required to pay [Attorney] Lazarus for representing it in Lake Station’s
        appeal after [Attorney] Hall refused to do so.
        8. IAE has filed its Motion to Decide Attorneys’ Liens Based on
        Contract requesting that this [c]ourt “allocate attorney’s fees in this
        case based upon the express written fee agreements between the
        parties.” This [c]ourt concurs with IAE that this case can be decided
        on the 2003 Fee Agreement between IAE and [Attorney] Hall without
        further hearing.
        []
        The language of the 2003 Fee Agreement is straightforward and
        unambiguous: [Attorney] Hall was to be paid 33 1/3% of any
        recovery. The timing of the 2003 Fee Agreement—that is, after the
        entry of the Order entering summary judgment in this case—leads this
        [c]ourt to the inescapable conclusion that [Attorney] Hall was retained
        to represent IAE in that appeal of the summary judgment entered
        against it and in the subsequent prosecution of IAE’s claim against
        Lake Station, as well.
        [Attorney] Hall complied with his obligations under the 2003 Fee
        Agreement—he represented IAE in the appeal of the summary
        judgment Order and in the jury trial held in this cause. There is no
        mention in the 2003 Fee Agreement of [Attorney] Hall representing
        IAE in the appeal of a jury verdict. Accordingly, this [c]ourt finds that
        [Attorney] Hall did not breach the 2003 Fee Agreement by insisting
        that it pertained only to the appeal of the summary judgment entered
        against IAE and to the subsequent jury trial, but not to Lake Station’s
        appeal of the jury verdict entered at that trial. [Attorney] Hall is
        therefore entitled to be paid 33 1/3% of IAE’s recovery, and
        [Attorney] Lazarus’ fees should be paid in addition to, and not from,
        [Attorney] Hall’s fee.
        9. In addition to the issue of the attorney’s fee to be paid to Hall, Lake
        Station has filed its request that this [c]ourt enter judgment in the
        amount of $776,440.00, which sum includes simple interest in the
        amount of 8% that has accrued since June 18, 1999. IAE and Lake
        Station entered into a written agreement providing for this calculation
        which is dated October 25, 2012.
        This [c]ourt has reviewed Lake Station’s request and finds that it is
        consistent with the instructions provided to this [c]ourt by our Court of
Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015     Page 10 of 39
        Appeals when it remanded this matter back to this [c]ourt for the
        purpose of recalculating the pre-judgment interest award using simple
        interest. [] Accordingly, this [c]ourt finds that Lake Station’s request
        should be granted that that judgment should be entered in the amount
        of $776,440.00
                                              Judgment
        IT IS THEREFORE ORDERED, ADJUDGED AND DECREED
        as follows:
        []
        2. The Motion to Decide Attorneys’ Liens Based on Contract filed by
        [IAE] is granted, in part, as it pertains to the allegation that no further
        hearing is necessary to decide the issue of attorney’s fees in this case
        with respect to the contractual fees discussed in paragraph 3 below.
        3. Pursuant to the September 29, 2003, Attorney-Client Fee
        Agreement entered into between [Attorney Hall] and [IAE], [Attorney
        Hall] is entitled to receive from [IAE] an attorney’s fee in the sum of
        33 1/3% of its recovery in this case. The fee of [Attorney Hall] shall
        not be reduced by the 10% fee out of IAE’s recovery which is due and
        owing from [IAE] to [Attorney Lazarus], and the fee to [Attorney
        Lazarus] shall be paid in addition to, and not from, the fee paid to
        [Attorney Hall].
        4. The request by [Lake Station] to enter judgment in the amount of
        $776,440.00 is granted and this [c]ourt enters judgment in favor of
        [IAE] and against [Lake Station], in the sum of $776,440.00 in lieu of
        the prior judgment in this case which is hereby vacated. Post
        judgement interest of 8% per annum shall accrue from June 16, 2010,
        which is the date of the prior judgment, to the date of the payment by
        [Lake Station] of the amended judgment as provided herein.
        []
        6. Any other attorney fee issue which remain[s] unresolved by this
        judgment shall be identified and requested to be determined either in
        this case or through separate litigation. Such request for the
        determination herein of other fees claimed by counsel must be filed on
        or before February 19, 2013, or the same will be denied as untimely. If
        no timely request is made, then this judgment shall be deemed to be
        final, since there would be no just cause for delay in entering the same
        as a final determination of all pending issues before this [c]ourt.

Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015      Page 11 of 39
       (Appellant’s App. pp. 55-58) (internal footnotes omitted). In a separate

       footnote, Judge Svetanoff indicated that “[b]efore IAE retained [Attorney Hall]

       it was represented by Attorney [Bishop]. IAE alleges that Attorney Bishop is

       claiming a right to a portion of [Attorney Hall’s] fee. However, the issue of

       Attorney Bishop’s fee, which will ultimately require a factual determination,

       Galanis v. Lyons & Truitt, 715 N.E.2d 858, 862 (Ind. 1999), is not presently

       before this [c]ourt.” (Appellant’s App. p. 56).


[16]   On February 13, 2013, Attorney Lazarus petitioned the trial court to “award his

       fees based on his lien arising from his contract with IAE and out of the recovery

       IAE expects to obtain in this action.” (Appellant’s App. p. 206). Attorney

       Bishop complied with Judge Svetanoff’s order and filed a separate action for his

       attorney fees on February 21, 2013, which was assigned to Judge Calvin D.

       Hawkins (Judge Hawkins). When Judge Svetanoff failed to timely rule on

       IAE’s motion to consolidate Attorney Bishop’s separate cause for attorney’s

       fees with the case before him, IAE filed a Trial Rule 53.1 motion with the

       supreme court, which was granted on August 5, 2013. Our supreme court

       consolidated both causes and assigned them to Judge Hawkins.


[17]   On May 16, 2014, IAE filed its motion for summary judgment, memorandum

       in support thereof, and designation of evidence, contending that Attorneys Hall

       and Bishop are not entitled to attorney fees because they abandoned the case

       “years before it was completed,” nor do they have a “cognizable contract

       claim” or “can they assert a valid equitable claim based on quantum meruit.”

       (Appellant’s App. p. 329). On June 18, 2014, Attorney Bishop filed his

       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 12 of 39
       memorandum in opposition to IAE’s motion for summary judgment, as well as

       a designation of evidence. IAE replied on June 30, 2014.


[18]   That same day—June 30, 2014—Attorney Hall filed his response to IAE’s

       motion for summary judgment, as well as his cross-motion for summary

       judgment as to attorney fees and partial summary judgment as to abuse of

       process against IAE. Together with his motion, Attorney Hall filed a

       memorandum in support and designation of evidence. In his cross-motion,

       Attorney Hall alleged that no genuine issue of material facts exist that the

       attorney fees can be calculated pursuant to the Galanis case. Additionally, in

       his motion for partial summary judgment on his abuse of process claim,

       Attorney Hall asserts that during these prolonged proceedings, “IAE embarked

       on a scorched earth policy of defamatory claims of abuse, mean spiritedness

       and other equally fallacious claims in an effort to try to get out of paying

       [Attorney] Hall for his efforts.” (Appellant’s App. p. 627). As a result,

       Attorney Hall sought “an award of $86,250 to compensate him for the time

       spent defending these ridiculous claims.” (Appellant’s App. p. 627). Within

       ten days, on July 9, 2014, IAE responded to Attorney Hall’s motion and, on

       December 22, 2014, moved for summary judgment on Attorney Hall’s cross-

       claim for abuse of process against IAE. IAE filed a memorandum in support

       thereof and a designation of evidence.


[19]   On January 14, 2015, Attorney Bishop moved to bar the testimony of IAE’s

       expert witness, Donald Lundberg (Lundberg), because of IAE’s untimely expert

       witness disclosure. Two days later, Attorney Bishop filed his motion for

       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 13 of 39
       summary judgment on IAE’s counterclaim for breach of contract, together with

       his memorandum in support and designation of evidence.


[20]   On January 22, 2015, Attorney Hall filed his response to IAE’s motion for

       summary judgment and his cross-motion for summary judgment as to all issues,

       with a memorandum in support thereof and designation of evidence relied

       upon. The following day, Attorney Lazarus filed his motion for partial

       summary judgment concerning his right to collect attorney fees on the

       underlying judgment, with a memorandum in support and designation of

       evidence, to which Attorney Bishop responded on January 30, 2015.


[21]   The following month, on February 6, 2015, numerous filings were recorded.

       Attorney Bishop responded to Attorney Hall’s cross-motion for summary

       judgment as to all issues; Attorney Lazarus filed a reply to Bishop’s response as

       to Attorney Lazarus’ motion for partial summary judgment. IAE filed a

       response to Attorney Bishop’s motion to disqualify Lundberg as its expert

       witness and a response to Attorney Bishop’s motion to disqualify Attorney

       Lazarus as IAE’s attorney. IAE also filed a response to Attorney Hall’s cross-

       motion for summary judgment as to all issues, as well as a reply in support of its

       motion for summary judgment as to Attorney Hall’s abuse of process claim

       against IAE.


[22]   On February 11, 2015, Judge Hawkins conducted a hearing on all pending

       motions and issued his Order on February 18, as amended on March 2, 2015,

       concluding, in pertinent part,


       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 14 of 39
               (a) That [IAE’s] Motion for Summary Judgment is hereby denied.
               (b) That [Attorney Hall’s] Cross-Motion for Summary Judgment as to
                   all issues is hereby granted;
               (c) That [Attorney Lazarus’] Motion for Partial Summary Judgment is
                   hereby denied;
               (d) [Attorney Hall’s] Motion for Summary Judgment on the abuse of
                   process is granted and [Attorney Hall] is awarded judgment on said
                   claims in the amount of $86,250.
               (e) That [Attorney Hall’s] Motion for Summary Judgment for
                   Apportionment of Attorney Fees and Expenses is hereby granted,
                   and that apportionment of attorney fees and expenses shall be
                   delineated pursuant to the theory of quantum meruit and the Indiana
                   Supreme Court case Galanis v. Lyons & Truit, as follows:
                        1. [Attorney Hall] (attorney fees - $406,707.68; expenses -
                           $40,167.74);
                        2. [Attorney Bishop] (attorney fees - $25, 812.00; expenses –
                           [$]2,009.15);
                        3. [Attorney Lazarus] (attorney fees – [$]13,825.00).
               (f) Pursuant to Trial Rule 54(B) the [c]ourt determined there is no just
                   reason for delay and directs the entry of judgment which shall be
                   deemed a final appealable Order.
       (Appellant’s App. pp. 63-64).


[23]   On March 20, 2015, Judge Hawkins issued a second Order, holding

               (a) [IAE] and [Attorney Lazarus’] Motion to Stay Proceedings
                   Pending Appeal is GRANTED.
               (b) [Attorney Hall’s] Motion, joined by [Attorney Bishop], to require
                   [IAE] to post an appeal bond and for immediate payout of funds
                   on deposit [is] DENIED.
               ...
               (e) The [c]ourt finds that the Motion of [Attorney Hall] and [Attorney
               Bishop] to strike the report of [Lundberg] and documents utilizing or



       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015      Page 15 of 39
               citing to said report is GRANTED. The Clerk is hereby directed to
               Strike from the record the following documents:
                        (1) [IAE’s] response to [Attorney Hall’s] Motion for Summary
                        Judgment as to all issues;
                        (2) [IAE’s] response to [Attorney Hall’s] Motion for Summary
                        Judgment as to Abuse of Process; and
                        (3) The report and affidavit of [Lundberg], filed as an Exhibit to
                        [IAE’s] designation in Support of [IAE] and any other
                        documents filed by [IAE] that cite to or refer to the stricken
                        report of [Lundberg].
               (f) The [c]ourt GRANTS [Attorney Hall’s] Motion to Strike the two
               (2) trial briefs filed by [IAE] as to the expenses of [Attorney Hall] and
               [Attorney Bishop]. The Clerk is directed to strike these documents
               from the record.
               (g) The Clerk of the [c]ourt is hereby ordered to certify the record of
               proceedings to the [c]ourt of [a]ppeals in this cause upon completion of
               the striking as ordered herein.
       (Appellant’s App. pp. 66-67).


[24]   IAE and Attorney Lazarus appeal; Attorneys Hall and Bishop cross-appeal.

       Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

[25]   The cavalier indifference exhibited by the attorneys of record as to res judicata,

       the trial rules, and rules of appellate procedure is astounding, and the parties

       involved have no one but themselves to blame for the flood of litigation that

       swallowed all civility and legal professionalism. Because of the enormous

       amount of filings and motions in this case, and the parties’ attitude of seemingly

       appealing all orders, even going back to Judge Dywan’s declaratory judgment

       of April 4, 2012, we first need to determine which orders were timely appealed


       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015      Page 16 of 39
       and which orders have become final. In other words, we need to delineate the

       scope of this appeal and the boundaries set by the doctrine of res judicata.


[26]   The doctrine of res judicata bars litigation of a claim after a final judgment has

       been rendered in a prior action involving the same claim between the same

       parties or their privies. MicroVote General Corp. v. Ind. Election Comm’n, 924

       N.E.2d 184, 191 (Ind. Ct. App. 2010). The principle behind this doctrine, as

       well as the doctrine of collateral estoppel, is the prevention of repetitive

       litigation of the same dispute. Id. The following four requirements must be

       satisfied for a claim to be precluded under the doctrine of res judicata: (1) the

       former judgment must have been rendered by a court of competent jurisdiction;

       (2) the former judgment must have been rendered on the merits; (3) the matter

       now in issue was, or could have been determined in the prior action; and (4) the

       controversy adjudicated in the former action must have been between the

       parties to the present suit or their privies. Id.


[27]   In his declaratory judgment of April 4, 2012, Judge Dywan decided in an action

       brought by Attorney Hall against IAE, that the 2003 Agreement entered into

       between Attorney Hall and IAE was valid and enforceable whereas the 2005

       Agreement is not enforceable. Judge Dywan also held that the amount of fees

       due under the 2003 Agreement and “the amounts due any of the other attorneys

       who were employed by [Talluri] in connection with the underlying matter” is

       left to the determination of Judge Svetanoff. (Appellant’s App. p. 152).

       Following IAE’s motion to correct error, Judge Dywan clarified his ruling on

       May 17, 2012, that the amount of fees payable to Attorney Hall and Attorney

       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 17 of 39
       Bishop and the effect of those fees on Attorney Lazarus were to be determined

       by Judge Svetanoff applying the rules as set forth in Galanis.


[28]   On January 14, 2013, as amended on February 4, 2013, Judge Svetanoff

       rendered his judgment on the attorney fees determination, concluding that

       Attorney Hall “did not breach the 2003 fee agreement by insisting that it

       pertained only to the [first appeal] and to the subsequent jury trial, but not to

       Lake Station’s appeal of the jury verdict entered at that trial.” (Appellant’s

       App. p. 56). Accordingly, Judge Svetanoff ruled that Attorney Hall was

       entitled to be paid pursuant to the 2003 Agreement, i.e., 33 1/3% of IAE’s

       recovery, with Attorney Lazarus’ fees paid in addition to Attorney Hall’s fees. 2

       In the same Order, Judge Svetanoff entered judgement in the amount of $776,

       440 pursuant to the settlement between IAE and Lake Station. The judgment

       declared that requests for “the determination of other fees claimed by counsel

       must be filed on or before February 19, 2013, or the same will be denied as

       untimely. If no timely request is made, then this judgment shall be deemed to




       2
         Although at first glance, Judge Svetanoff’s determination of attorney fees in accordance with the written
       2003 Agreement entered between Attorney Hall and IAE appears to conflict with Judge Dywan’s order that
       the fees should be calculated pursuant to our supreme court’s opinion in Galanis, upon further evaluation, the
       two orders are not contradictory. In Galanis v. Lyons & Truitt, 715 N.E.2d 858, 860 (Ind. 1999), our supreme
       court made the distinction between an attorney who satisfied his obligations under a written fee agreement
       versus the attorney who is discharged prior to the finality of the cause and whose fee agreement did not
       provide for the eventuality of payment in case of discharge. Whereas the former is entitled to payment
       pursuant to the contractual terms, the latter’s fees are calculated in accordance with quantum meruit or its
       reasonable value. See id. at 861-62. Therefore, as Judge Svetanoff held that Attorney Hall had satisfied his
       obligations under the 2003 Agreement, he was entitled to 33 1/3% of the recovery, as provided in the fee
       agreement.

       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015                     Page 18 of 39
       be final[.]” (Appellant’s App. p. 58). In a footnote, Judge Svetanoff noted that

       Attorney Bishop’s attorney fee determination was not before its court.


[29]   No timely requests were made, and Judge Svetanoff’s judgment became final.

       The parties did not appeal this final judgment. However, we acknowledge that

       within the deadline imposed by Judge Svetanoff, on February 13, 2013,

       Attorney Lazarus petitioned the trial court to award him fees based on his lien

       arising from his contract with IAE and out of the recovery IAE expected to

       obtain in the underlying suit. Nonetheless, this petition merely represents a

       request for fees by Attorney Lazarus, a right already recognized in Judge

       Svetanoff’s judgment by declaring that Attorney Lazarus’ fees “should be paid”

       in addition to Attorney Hall’s fees. (Appellant’s App. p. 56). Accordingly, as

       this petition did not represent a “determination of other fees,” it did not bar

       Judge Svetanoff’s judgment from becoming final on February 19, 2013.

       (Appellant’s App. p. 58) (emphasis added).


[30]   Lastly, on February 11, 2015, as amended on March 2, 2015, Judge Hawkins

       issued his order, from which IAE and Attorney Lazarus now appeal. In the

       order, Judge Hawkins calculated the apportionment of attorney fees and

       expenses pursuant to the theory of quantum meruit and Galanis. In addition,

       Judge Hawkins awarded Attorney Hall a judgment on his abuse of process

       claim.


[31]   Accordingly, based on these orders, we will not address IAE’s claims that

       Attorney Hall is not entitled to attorney fees because he abandoned his


       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 19 of 39
       obligations toward Talluri under the 2003 Agreement. In his order of January

       14, 2013, as amended on February 4, 2013, Judge Svetanoff conclusively held

       that Attorney “Hall complied with his obligations under the 2003 Fee

       Agreement.” (Appellant’s App. p. 56). As we noted, this judgment became

       final on February 19, 2013, and became subject to the thirty-day period in

       which to appeal. See Ind. Appellate Rule 9(A). Even though the abandonment

       argument was not thoroughly developed before Judge Svetanoff, and instead

       was analyzed before Judge Hawkins, under res judicata, a party is not allowed to

       split a cause of action, pursuing it in a piecemeal fashion and subjecting a

       defendant to needless multiple suits. Ind. State Highway Comm’n v. Speidel, 392

       N.E.2d 1172, 1175 (Ind. Ct. App. 1979). As the present claim was within the

       issues raised before Judge Svetanoff, the claim is now barred by res judicata.


[32]   Also, we will not address Attorney Hall’s cross-appeal of “the February 3, 2013

       order of Judge Svetanoff wherein he accepted the stipulation of [Attorney]

       Lazarus and [Lake Station] to reduce the jury verdict from $965,300 to

       $776,400.” (Hall’s Br. p. 24). As the time to appeal this order was within thirty

       days of February 19, 2013, Attorney Hall’s claim is now time-barred. See Ind.

       Appellate Rule 9(A). Similarly, we will not analyze Attorney Hall’s allegation

       that the stipulation to reduce the jury verdict constitutes a fraud on himself and

       Attorney Bishop, raised for the first time in Attorney Hall’s reply brief. See also

       Kelly v. Levandoski, 825 N.E.2d 850, 857 n.2 (Ind. Ct. App. 2005) (“Appellants

       are not permitted to present new arguments in their reply briefs”), trans. denied.


[33]   We will now turn to the issues which are properly before us.

       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 20 of 39
                                             I. Summary Judgment


[34]   First, we will address whether the trial court properly denied IAE’s motion for

       summary judgment, in which IAE argued for an attorney fees distribution in

       accordance with the provisions of the fee agreements, but instead the trial court

       calculated the apportionment of attorney fees and expenses pursuant to the

       theory of quantum meruit and Galanis. Additionally, we will review the trial

       court’s denial of Attorney Lazarus’ motion for partial summary judgment

       seeking fees of 10% of the underlying recovery, as provided in his contract with

       IAE.


                                             A. Standard of Review


[35]   Summary judgment is appropriate only when there are no genuine issues of

       material fact and the moving party is entitled to a judgment as a matter of law.

       Ind. Trial Rule 56(C). “A fact is material if its resolution would affect the

       outcome of the case, and an issue is genuine if a trier of fact is required to

       resolve the parties’ differing accounts of the truth . . . , or if the undisputed facts

       support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756,

       761 (Ind. 2009).


[36]   In reviewing a trial court’s ruling on summary judgment, this court stands in the

       shoes of the trial court, applying the same standards in deciding whether to

       affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

       891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

       must determine whether there is a genuine issue of material fact and whether

       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 21 of 39
       the trial court has correctly applied the law. Id. at 607-08. In doing so, we

       consider all of the designated evidence in the light most favorable to the non-

       moving party. Id. at 608. The party appealing the grant of summary judgment

       has the burden of persuading this court that the trial court’s ruling was

       improper. Id. When the defendant is the moving party, the defendant must

       show that the undisputed facts negate at least one element of the plaintiff’s

       cause of action or that the defendant has a factually unchallenged affirmative

       defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary

       judgment must be reversed if the record discloses an incorrect application of the

       law to the facts. Id.


                                             B. Designated Evidence


[37]   Before turning to the merits of this argument, we need to address Attorneys

       Bishop’s and Hall’s contention that IAE’s entire claim is waived as IAE failed

       to properly designate evidence supporting its contention on summary

       judgement. Specifically, Attorney Bishop, with whom Attorney Hall agrees,

       argues that besides designating documents in their entirety without specific

       references, IAE also designated affidavits which did not conform to the

       prerequisite of Indiana Trial Rule 56.


[38]   Our supreme court clarified the requirements of Indiana Trial Rule 56(C) for

       designating evidence in summary judgment proceedings in Filip v. Block, 879

       N.E.2d 1076, 1080 (Ind. 2008), reh’g denied. In Filip, the supreme court held:




       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 22 of 39
               Trial Rule 56(C) does compel parties to identify the “parts” of any
               document upon which they rely. The Rule thus requires sufficient
               specificity to identify the relevant portions of a document, and so, for
               example, the designation of an entire deposition is inadequate.
               Although page numbers are usually sufficient, a more detailed
               specification, such as supplying line numbers, is preferred.
       Id. at 1081 (internal quotations omitted). Trial Rule Rule 56(C) does not

       mandate either the form of designation, i.e., the degree of specificity required, or

       its placement, i.e., the filing in which the designation is to be made. Id. Parties

       may choose the placement of evidence designation. Id. The only requirement

       as to placement is that the designation clearly identify listed materials as

       designated evidence in support of or in opposition to the motion for summary

       judgment. Id. If the designation is not in the motion itself, it must be in a paper

       filed with the motion, and the motion should recite where the designation of

       evidence is to be found in the accompanying papers. Id.


[39]   IAE’s motion for summary judgment included a memorandum of law in

       support of the motion, as well as a separate designation of evidence. In its

       designation, IAE generally listed the documents submitted and relied upon,

       whereas, the memorandum limits the submitted documents to more specific

       lines or texts. “If a party designates both specific lines or text and also more

       general identification of the document containing the specified lines, the court

       may limit that party to the more specific designation.” Id. Accordingly, IAE

       followed the guidelines of Filip in submitting evidence in support of its motion

       for summary judgment.




       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015    Page 23 of 39
[40]   Attorney Bishop also disputes the admissibility of Talluri’s affidavit, designated

       as Exhibit 1 by IAE, because it “lacks the requisite statement by the affiant that

       he has personal knowledge of the matters stated therein, as well as the required

       statement that he is competent to testify as to the matters recited therein.”

       (Bishop’s Br. p. 9). Indiana Trial Rule 56(E) contemplates the submission of

       supporting and opposing affidavits made on personal knowledge and setting

       forth facts that would be admissible in evidence and that show the affiant is

       competent to testify thereon.


[41]   Talluri’s affidavit affirms that, upon being “duly sworn on oath,” he is “the

       President of [IAE] and was its president at all times discussed herein.”

       (Appellant’s App. p. 365). This statement—albeit very sparse—meets the

       requirement of 56(E) as it demonstrated that the paragraphs that followed were

       made based upon Talluri’s position as president of the company. An inference

       can be made that as president, he would be competent to testify as to the

       matters that took place during his tenure. Therefore, we conclude that Talluri’s

       affidavit was in compliance with the T.R. 56(E).


                                                    C. Analysis


                                        1. Attorneys Hall and Bishop


[42]   IAE contends that Judge Hawkins erred in denying its motion for summary

       judgment to award attorney fees according to the attorney fee agreements and

       instead calculated fees pursuant to the quantum meruit doctrine of Galanis.



       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 24 of 39
[43]   As we noted before, in his order of January 14, 2013, as amended on February

       4, 2013, Judge Svetanoff held that Attorney Hall was entitled to receive an

       attorney’s fee of 33 1/3% of the recovery in the underlying case, pursuant to the

       2003 Agreement entered into between Attorney Hall and Talluri. The

       judgment became final on February 19, 2013, and was not appealed by the

       parties. Accordingly, as the claim for Attorney Hall’s attorney fees had already

       been litigated by the same parties and decided by Judge Svetanoff, Judge

       Hawkins was barred from revisiting the claim pursuant to the directives of res

       judicata. See MicroVote General Corp., 924 N.E.2d at 191. Accordingly, as Judge

       Hawkins recalculated Attorney Halls’ attorney fees pursuant to the quantum

       meruit provisions of Galanis, we reverse Judge Hawkins’ decision denying IAE’s

       motion for summary judgment in that respect and his corresponding grant of

       Attorney Hall’s motion for summary apportionment of attorney fees pursuant

       to Galanis.


[44]   However, with respect to Attorney Bishop’s fees, Judge Svetanoff’s order only

       proscribed in a footnote that “Attorney Bishop’s fee, which will ultimately

       require a factual determination [] is not presently before this [c]ourt.”

       (Appellant’s App. p. 56). Accordingly, Attorney Bishop’s fees were properly

       before Judge Hawkins, who awarded and calculated these fees in accordance

       with the pronouncements of Galanis. IAE now disputes that Attorney Bishop is

       entitled to attorney fees because he abandoned the case. We disagree.


[45]   The undisputed designated evidence reflects that Attorney Bishop and Talluri

       agreed to “representation at a contingent fee of 25% of the amount recovered

       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 25 of 39
       whether by settlement o[r] after commencement of trial.” (Appellant’s App. p.

       571). Attorney Bishop affirmed that Talluri “acknowledged that an upward

       revision of the percentage fee would be expected and appropriate should an

       appeal become necessary, but refused to commit to a number or discuss the

       issue further insisting that discussion should take place if an[d] when an appeal

       became necessary. It was then agreed that the retainer contract would not

       include my representation on appeal.” (Appellant’s App. p. 571). Attorney

       Bishop filed the complaint in the underlying cause and after a summary

       judgement in favor of Lake Station was rendered, Attorney Bishop contacted

       Talluri to enter into fee negotiations in case Talluri decided to appeal the

       negative decision. After the notice of appeal was filed, Talluri rejected Attorney

       Bishop’s fee proposal and contracted with Attorney Hall to pursue the appeal

       on IAE’s behalf. Accordingly, Attorney Bishop did not abandon Talluri;

       instead, Talluri discharged him.


[46]   “A client has a right to discharge a lawyer at any time, with or without cause,

       subject to liability for payment for the lawyer’s services.” Ind. Professional

       Conduct Rule 1.16 cmt. Here, Attorney Bishop was discharged before a result

       was known. As noted by our supreme court in Galanis, “[t]he conventional rule

       is that ‘[a]n attorney who is employed under a contingent fee contract and

       discharged prior to the occurrence of the contingency is limited to quantum

       meruit recovery for the reasonable value of the services rendered to the client,

       and may not recover the full amount of the agreed contingent fee.’” Galanis,

       715 N.E.2d at 861 (quoting 7 AM.JUR.2D Attorneys at Law § 181 (1997)).


       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 26 of 39
       “This rule strikes the proper balance by providing clients freedom in

       substituting counsel, prohibiting clients from being held responsible for

       attorney’s fees not previously agreed to, and protecting an attorney’s right to be

       compensated for services rendered.” Id. Quantum meruit is an equitable

       doctrine that prevents unjust enrichment by permitting one to recover the value

       of the work performed or material furnished if used by another and if valuable.

       Id. (quoting 17A C.J.S. Contracts § 440 at 553 (1963)). Arriving at the proper

       number to place on the predecessor’s services is ultimately a factual

       determination for the trial court. Id. at 862.


[47]   Attorney Bishop designated evidence establishing the tasks performed on behalf

       of IAE under his fee agreement, the time expended, and the regular hourly rate

       for his professional services. Although IAE presents arguments contesting the

       award of any fees to Attorney Bishop, it did not present any evidence refuting

       Attorney Bishop’s numbers. In his Order, Judge Hawkins awarded him

       attorney fees of $25,812.00 based on the Galanis guidelines, to be paid from

       Attorney Hall’s remuneration. Therefore, we affirm the trial court’s grant of

       summary judgment on Attorney Hall’s motion for summary judgment for

       apportionment of attorney fees with respect to Attorney Bishop’s fees.


                                                   2. Expenses


[48]   Next, IAE contends that the trial court erred in awarding expenses to Attorneys

       Hall and Bishop. Although IAE disputed the award of attorney fees to either

       Attorney, and even though Attorney Hall included his expenses as a line item


       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 27 of 39
       in his motion for summary judgment, IAE never disputed the amount or

       character of these expenses before the trial court, nor did it designate any

       evidence to that effect. 3 As IAE now contests the expenses for the first time on

       appeal, the argument is waived for our review. Showalter v. Town of Thorntown,

       902 N.E.2d 338, 342 (Ind. Ct. App. 2009) (“A party generally waives appellate

       review of an issue or argument unless that party presented that issue or

       argument before the trial court.”), trans. denied.


                                                 3. Attorney Lazarus


[49]   Lastly, Attorney Lazarus asserts that the trial court erred when it denied his

       motion for partial summary judgment seeking attorney fees in the amount of

       10% of the recovery in the underlying cause pursuant to his contract with IAE.

       Instead, in his Order, Judge Hawkins awarded Attorney Lazarus attorney fees

       pursuant to the guidelines in Galanis for an amount of $13,825.00.


[50]   However, as with Attorney Hall’s fees, the calculation of Attorney Lazarus’

       remuneration was already decided in Judge Svetanoff’s order of January 14,

       2013, as amended on February 4, 2013. Specifically, Judge Svetanoff held that

       Attorney Lazarus was entitled to receive a “10% fee out of IAE’s recovery” and

       this fee “shall be paid in addition to, and not from, the fee paid to” Attorney

       Hall. (Appellant’s App. p. 57). Judge Svetanoff’s order became final on




       3
         While IAE refers to IAE Trial Brief as to Hall’s Expense Claims, filed on January 20, 2015, in support for
       its argument that the trial court erred in awarding expenses, this Trial Brief was struck by the trial court by
       order of March 20, 2015.

       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015                        Page 28 of 39
       February 19, 2013, and was not appealed by the parties. Thus, as the claim for

       Attorney Lazarus’ attorney fees had already been litigated by the same parties

       and decided by Judge Svetanoff, Judge Hawkins was barred from revisiting the

       issue pursuant to the directives of res judicata. See MicroVote General Corp., 924

       N.E.2d at 191. Accordingly, as Judge Hawkins recalculated Attorney Lazarus’

       attorney fees pursuant to the quantum meruit provisions of Galanis, we reverse

       Judge Hawkins’ decision denying Attorney Lazarus’ motion for partial

       summary judgment.


                                           II. Abuse of Process Award


[51]   In his Order, Judge Hawkins granted summary judgment on Attorney Hall’s

       abuse of process claim and awarded him $86,250. IAE now contends that the

       trial court erred in its award of summary judgment because Attorney Hall failed

       to designate sufficient evidence that could satisfy the elements of the claim.


[52]   A plaintiff claiming abuse of process must show a misuse or misapplication of

       process for an end other than that which it was designed to accomplish. Estate

       of Mayer v. Lax, Inc., 998 N.E.2d 238, 256 (Ind. Ct. App. 2013), trans. denied.

       The two elements of abuse of process are: (1) ulterior purpose or motives; and

       (2) a willful use of process not proper in the regular conduct of the proceedings.

       Id. “If a party’s acts are procedurally and substantively proper under the

       circumstances then his intent is irrelevant.” Id. (quoting Watson v. Auto Advisors,

       Inc., 822 N.E.2d 1017, 1029 (Ind. Ct. App. 2005), trans. denied). There is no

       basis for an abuse of process claim if legal process is used to accomplish an


       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 29 of 39
       outcome that the process was designated to accomplish. Id. “The purpose for

       which the process is used is the only thing of importance.” Nat’l City Bank of

       Ind. v. Shortridge , 689 N.E.2d 1248, 1252 (Ind. 1997), supplemented at 691

       N.E.2d 1210 (Ind. 1998).


[53]   “The gravamen of [abuse of process] is not the wrongfulness of the prosecution,

       but some extortionate perversion of lawfully initiated process to illegitimate

       ends.” Id. (quoting Heck v. Humphrey, 512 U.S. 477, 486 n.5, 114 S.Ct. 2364,

       2372 n.5, 129 L.Ed.2d 383 (1994)). Unlike a malicious prosecution action, an

       action for abuse of process does not necessarily require proof that the action

       was brought without probable cause or that the action terminated in favor of the

       party alleging abuse of process. Lindsay v. Jenkins, 574 N.E.2d 324, 326 (Ind.

       Ct. App. 1991), trans. denied. It does appear, however, that an action’s lack of

       validity can be highly relevant in examining an abuse of process claim. Our

       supreme court has held that the reasonableness of an attorney’s action

       instituting litigation should be judged by an objective standard and whether

       “‘no competent and reasonable attorney familiar with the law of the forum

       would consider that the claim was worthy of litigation on the basis of the facts

       known by the attorney who instituted suit.’” Shortridge, 689 N.E.2d at 1253

       (quoting Wong v. Tabor, 422 N.E.2d 1279, 1288 (Ind. Ct. App. 1981)). 4 There

       must be evidence that an attorney filed a claim for a purpose other than aiding



       4
         Wong solely addressed a claim of malicious prosecution, while Shortridge solely addressed a claim of abuse
       of process. Still, the Shortridge court clearly deemed it appropriate to rely heavily upon Wong in establishing
       the parameters of an abuse of process claim.

       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015                        Page 30 of 39
       his or her client in adjudicating his or her claim. Id. Additionally, there must

       be evidence that the attorney “‘knowingly initiated proceedings for a clearly

       improper purpose,’” which requires more than evidence of a questionable belief

       as to the merits of a case, or the failure to fully investigate all facts before filing

       suit. Id. (quoting Wong, 422 N.E.2d at 1287).


[54]   Applying these principles to the present case, Attorney Hall states:

               It is difficult to imagine a clearer example of abuse of process than that
               of IAE in this case. After suggesting that the 2010 dispute over
               whether or not either the 2003 or 2005 fee agreement required
               [Attorney Hall] to handle the second appeal in 2011 under the
               agreements of 2003 or 2005, it was IAE who then delayed those
               proceedings for 2 years, so as to allow for [Attorney Lazarus] to
               handle the second appeal under the guise that he could do so at
               virtually no costs to IAE, as he claimed that he would be paid by
               [Attorneys] Hall and or Bishop. If IAE truly believed that the 2003 or
               2005 [A]greements required [Attorney Hall] to handle the second
               appeal, why wouldn’t they simply want a judge to decide that issue?
               After all, [Attorney Hall] stated on the record in both Magistrate
               Pagano’s courtroom and Judge Davis’ courtroom that if the judge
               decided that [Attorney Hall] was required to handle the second appeal
               for free, that [Attorney Hall] would do so. Yet instead, IAE embarked
               on a scorched earth policy of defamatory claims of abuse, mean
               spiritedness and other equally fallacious claims in an effort to try to get
               out of paying [Attorney Hall] for his efforts. This abuse of process
               continues even today, with this so called motion for summary
               judgment on issues that have already been decided, and for which the
               Indiana Supreme court called unquestionably inappropriate[ 5]. As




       5
         In its Order of May 20, 2014, our supreme court stated that “[b]ecause [IAE] seeks an unquestionably
       inappropriate remedy under the rules and law governing writs of mandamus and prohibition, this original
       action is DISMISSED.” (Appellant’s App. p. 880). Seizing upon the “unquestionably inappropriate”
       language of the supreme court’s order, Attorney Hall inserts this language seemingly to support every
       argument in his brief, in blatant disregard of the proper context in which this statement was issued.

       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015                  Page 31 of 39
               evidenced by [Attorney Hall’s] affidavit, [Attorney Hall] has spent 345
               hours on these duplicate and spurious claims over the past four years.
               At his current hourly rate of $250, this totals $86,250.00 in time spent
               on this witch hunt . . . time which [Attorney Hall] could not spend on
               income producing cases. Accordingly [Attorney Hall] seeks summary
               judgment against IAE on the abuse of process claim and seeks an
               award of $86,250 to compensate him for the time spent defending
               these ridiculous claims.
       (Appellant’s App. pp. 626-27). Accordingly, Attorney Hall was required to

       establish that IAE had an illegitimate purpose in continuing the proceedings

       after he had sought a declaratory judgment as to whether his attorney fees were

       governed by either the 2003 or 2005 Agreement. In this regard, Attorney Hall

       claims that the illegitimate purpose centers on Attorney Lazarus’ motivation to

       forego paying Attorney Hall for his professional services and instead to reap a

       high fee with minimal work expended.


[55]   Besides making generalized statements, Attorney Hall’s appellate brief and his

       motion for summary judgment on this issue fail to direct us to any specifically

       designated evidence supporting his allegations. The only allegation that is

       supported with references to the evidence is the amount of his hourly rate and

       the number of hours spent on “duplicative and spurious claims.” (Hall’s Br. p.

       22). Regardless of these shortcomings, we must affirm the trial court’s award of

       abuse of process claim.




       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 32 of 39
[56]   Our own review of the designated evidence indicates that on August 12, 2012,

       IAE filed a motion before Judge Svetanoff to allocate attorney fees based on the

       express written fees agreement between the parties. To that end, and despite

       IAE’s abandonment claim, “[f]or the sake of efficiency,” IAE requested to

       award Attorney Hall “one-third fee out of its recovery from Lake Station,

       minus the 10 percent fee it owes” to Attorney Lazarus. (Appellant’s App. pp.

       77-78). Following Judge Svetanoff’s ruling of January 14, 2013, as amended on

       February 4, 2013, the attorney fees for Attorney Hall and Attorney Lazarus

       were conclusively determined in line with IAE’s request, as well as the issue

       that Attorney Hall had satisfied his obligations under the 2003 Agreement.

       Despite this clear and final pronouncement, IAE, through its attorney,

       continued to litigate Attorney Hall’s attorney fees by now alleging, in a new

       filing before Judge Hawkins, that Attorney Hall was not entitled to any attorney

       fees because he had abandoned the case. IAE never sought to have Judge

       Svetanoff’s decision set aside through proper procedural channels.


[57]   Judged by an objective standard, “no competent and reasonable attorney

       familiar with the law of the forum” would re-litigate a claim which had been

       conclusively decided between the parties in line with the attorney’s suggestion.

       See Shortridge, 689 N.E.2d at 1253. Although Attorney Hall points us to no

       direct evidence that IAE had an improper motive in this continued litigation

       besides Attorney Hall’s own uncited generalizations, “[a]n examination of the

       motivation behind the decision of the . . . attorney to file its [summary

       judgement proceeding before Judge Hawkins] is a question of fact that is subject


       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 33 of 39
       to conflicting inferences.” Id. Here, however, IAE’s persistent litigation despite

       Judge Svetanoff’s order granting it what it had requested is particularly

       troubling and indicative of an ulterior motive. More importantly, we cannot

       ignore that the doctrine of res judicata is firmly embedded in our legal tradition,

       and IAE’s blatant disregard of its principles in the case before us must lead to

       the conclusion that there is no genuine issue of material fact that Attorney

       Lazarus misused our legal “process for an end other than that which it was

       designed to accomplish.” Estate of Mayer, 998 N.E.2d at 256. We affirm the

       trial court’s grant of summary judgment in favor of Attorney Hall on his abuse

       of process claim.


                                               III. Motion to Strike


[58]   On January 14, 2015, Attorney Bishop moved to bar the testimony of Lundberg

       as expert witness for IAE because Lundberg had not been timely disclosed as an

       expert. Despite Attorney Bishop’s motion, IAE included Lundberg’s opinion

       as an exhibit in its response to Attorney Hall’s January 22, 2015 motion for

       summary judgement as to all issues. In its order of March 20, 2015, Judge

       Hawkins directed the clerk of the court to strike the Lundberg report,

       documents utilizing or citing to said report, and IAE’s two trial briefs that

       included IAE’s offer to settle Attorney Hall’s expenses for a certain amount.

       IAE now contends that the trial court abused its discretion when it issued its

       order to strike as it was “overbroad, [and] comparable to imposing default as a

       discovery sanction[.]” (IAE’s Br. p. 44).



       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 34 of 39
[59]   A trial court has broad discretion in ruling on a motion to strike. Norfolk S. Ry.

       Co. v. Estate v. Wagers, 833 N.E.2d 93, 100 (Ind. Ct. App. 2005), trans. denied.

       Generally, we review a trial court’s decision to admit or exclude evidence for an

       abuse of discretion. Id. This standard also applies to decisions to admit or

       exclude expert testimony. Id. We reverse a trial court’s decision to admit or

       exclude evidence only if that decision is clearly against the logic and effect of

       the facts and circumstances before the court, or the reasonable, probable, and

       actual deductions to be drawn therefrom. Id at 101. Further, the trial court’s

       decision will not be reversed unless prejudicial error is clearly shown. Devereux

       v. Love, 30 N.E.3d 754, 766 (Ind. Ct. App. 2015), reh’g denied.


[60]   Without having to decide whether the trial court abused its discretion, we can

       affirm the trial court’s ruling as IAE failed to establish it was prejudiced by the

       trial court’s order. In his letter, Lundberg expressed his opinion on whether

       Attorneys Hall and Bishop had satisfied the obligations of their respective fee

       agreements. With respect to Attorney Hall, this issue had been conclusively

       decided by Judge Svetanoff’s order and was res judicata in Judge Hawkins’

       court. In this respect, Lundberg’s opinion had become irrelevant. With respect

       to Attorney Bishop and the documents including settlement offers, IAE omits

       any allegation of prejudicial error. Accordingly, we decline to reverse the trial

       court’s order to strike.


                                    IV. Request for Appellate Attorney Fees




       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 35 of 39
[61]   Lastly, both Attorney Hall and Attorney Bishop request to be awarded

       appellate attorney fees in accordance with Indiana Appellate Rule 66(E). They

       posit an entitlement to appellate attorney fees because of IAE’s “baseless

       claims” indicating that it “seeks some form of retaliation against its prior

       counsel.” (Hall’s Br. p. 29 & Bishop’s Br. p. 15).


[62]   Indiana Appellate Rule 66(E) provides, in pertinent part, “[t]he Court may

       assess damages if an appeal . . . is frivolous or in bad faith. Damages shall be in

       the Court’s discretion and may include attorney’s fees.” Our discretion to

       award attorney fees under Indiana Appellate Rule 66(E) is limited, however, to

       instances where an appeal is permeated with meritlessness, bad faith, frivolity,

       harassment, vexatiousness, or purpose of delay. Thacker v. Wentzel, 797 N.E.2d

       342, 346 (Ind. Ct. App. 2003). A strong showing is required to justify an award

       of appellate damages, and the sanction is not imposed to punish mere lack of

       merit, but something more egregious. Helmuth v. Distance Learning Systems, Ind.,

       Inc., 837 N.E.2d 1085, 1094 (Ind. Ct. App. 2005). Additionally, while Indiana

       Appellate Rule 66(E) provides this court with discretionary authority to award

       damages on appeal, we must use extreme restraint when exercising this power

       because of the potential chilling effect upon the exercise of the right to appeal.

       Thacker, 797 N.E.2d at 346.


[63]   We have formally categorized claims for appellate attorney fees into

       “substantive” and “procedural” bad faith claims. In re Estate of Carnes, 866

       N.E.2d 260, 267 (Ind. Ct. App. 2007). To prevail on a substantive bad faith

       claim, the party must show that the appellant’s contentions and arguments are

       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 36 of 39
       utterly devoid of all plausibility. Id. In other words, substantive bad faith

       “implies the conscious doing of a wrong because of dishonest purpose or moral

       obliquity.” Wallace v. Rosen, 765 N.E.2d 192, 201 (Ind. Ct. App. 2002). On the

       other hand, procedural bad faith occurs when a party flagrantly disregards the

       form and content requirements of the rules of appellate procedure, omits and

       misstates relevant facts appearing in the record, and files briefs written in a

       manner calculated to require the maximum expenditure of time both by the

       opposing party and the reviewing court. Potter v. Houston, 847 N.E.241, 249

       (Ind. Ct. App. 2006).


[64]   IAE’s brief suffers from numerous procedural deficiencies predominantly in its

       argument section. Although each contention in the argument section “must be

       supported by citations to the authorities, statutes, and the Appendix or parts of

       the Record on Appeal relied upon,” references are either completely omitted or

       woefully inadequate. See Ind. Appellate Rule 46(A)(8)(a). Furthermore, the

       arguments we deemed reviewable are only summarily supported with case law.

       On the other hand, it should be pointed out that Attorney Hall’s appellate brief

       suffered from identical deficiencies.


[65]   Substantively, all appellate briefs include arguments “utterly devoid of all

       plausibility.” Estate of Carnes, 866 N.E.2d at 267. While we agree with certain

       contentions, we have rejected others. The parties before us continued to re-

       litigate issues and judgments already conclusively decided. While presenting us

       with several baseless claims, the parties did not shy away from unfounded

       accusations and deliberate exaggerations, such as:

       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 37 of 39
                 The arguments are, without merit in that they are generally predicated
                 upon fabricated or improperly characterized facts. [Attorney Bishop]
                 has resisted the temptation to once again respond to each, only to fill
                 the pages of his brief with inconsequential argument.
       (Hall’s Br. p. 13). Although this appeal reflects a degree of bitterness among the

       parties and counsel, incoherent and illogical tirades of accusations are out of

       place before an appellate tribunal. At times, the appellate briefs even read like

       an incoherent stream of consciousness without any proper legal foundation.


[66]   Indignation—whether righteous or not—is no substitute for a well-reasoned

       argument. We remind counsel that “an advocate can present his cause, protect

       the record for subsequent review and preserve professional integrity by patient

       firmness no less effectively than by belligerence or theatrics.” WorldCom

       Network Serv. Inc. v. Thompson, 698 N.E.2d 1233, 1237 (Ind. Ct. App. 1998),

       trans. denied. Here, all parties presented us with briefs and arguments woefully

       unbefitting an appellate advocate; none should be awarded appellate attorney

       fees. 6


                                                   CONCLUSION




       6
        Even though we are only deciding appellate attorney fees, we note that the unnecessary hyperbole already
       commenced before the trial court:
                 After IAE hired its current counsel, it was too late for [Attorney Hall] to insist upon what
                 [Talluri] had previously repeatedly requested of him, and complete the job of obtaining
                 recovery from Lake Station. It’s like the old nursery rhyme. Only in this case, Humpty
                 Dumpty threw himself off the wall and shattered his own egg. Now he seeks to blame his
                 elderly client for not putting his shell back together again.
       (Appellant’s App. p. 1746). We caution counsel that overheated rhetoric is unpersuasive and ill-advised.

       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015                        Page 38 of 39
[67]   Based on the foregoing, we reverse the trial court’s grant of summary judgment

       with respect to Attorney Hall’s and Attorney Lazarus’ attorney fees based on res

       judicata grounds but affirm the trial court’s calculation of Attorney Bishop’s

       attorney fees pursuant to the guidelines in Galanis and the trial court’s grant of

       expenses. We affirm the trial court’s grant of abuse of process claim; and also

       conclude that the trial court did not abuse its discretion granting the motion to

       strike. On Cross-Appeal, we deny appellate attorney fees to Attorney Bishop

       and Attorney Hall


[68]   Affirmed in part, reversed in part, and remanded for further proceedings in light

       of this opinion.


[69]   Brown, J. and Altice, J. concur




       Court of Appeals of Indiana | Opinion 45A05-1503-PL-100 | December 22, 2015   Page 39 of 39
