MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing                                Feb 18 2016, 9:00 am

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT
Kyle B. Lawrence
Eichhorn & Eichhorn, LLP
Hammond, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Serenity Salon and Day Spa,                              February 18, 2016
Inc.,                                                    Court of Appeals Case No.
Appellant-Plaintiff,                                     64A04-1509-SC-1507
                                                         Appeal from the Porter Superior
        v.                                               Court
                                                         The Honorable David L.
Amanda Pennington,                                       Chidester, Judge
Appellee-Defendant.                                      The Honorable Lisa Moser,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         64D04-1505-SC-1791



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 64A04-1509-SC-1507 | February 18, 2016       Page 1 of 6
                                           Case Summary
[1]   After Amanda Pennington violated a pre-employment contract with Serenity

      Salon and Spa, Inc., the small claims court ordered her to pay $500.00 in

      attorney fees. Serenity Salon appeals and argues that these fees are not

      reasonable. However, because an analysis of the facts and Rule 1.5 of the Rules

      of Professional Conduct supports the $500.00 award, we affirm.



                            Facts and Procedural History
[2]   In April 2013, Serenity Salon owner Wendy Krantz hired Pennington as a hair

      apprentice. Pennington signed a pre-employment agreement, which provides in

      relevant part as follows:


              7. Financial Fee for Training. For a period of one year
              immediately commencing after the apprentice training has been
              received, Employee shall remain an employee at Serenity Salon
              and Spa, Inc. in the capacity of the position trained. Should the
              employee resign at any given time during this one year period,
              the employee agrees to pay Serenity Salon and Spa, Inc. the sum
              of $2,500.00 for the training received. . . .

                                       *        *       *        *       *

              11. Acknowledgement of Legal Fees. Employee recognizes
              that Serenity Salon and Spa, Inc. will aggressively pursue our
              rights under this agreement. If at any time our team of attorneys
              is required to protect Serenity Salon and Spa, Inc. on your behalf,
              you agree to pay all associated fees and costs relevant.


      Appellant’s App. p. 6-7.

      Court of Appeals of Indiana | Memorandum Decision 64A04-1509-SC-1507 | February 18, 2016   Page 2 of 6
[3]   Pennington completed her apprenticeship in September 2014, and began

      working as a hair stylist. In January 2015, Pennington resigned from Serenity

      Salon before completing her required one-year term as an employee.


[4]   In May 2015, Serenity Salon filed a notice of claim in small claims court

      seeking the $2,500.00 for the training Pennington received as well as attorney

      fees. At the conclusion of the August 21, 2015, hearing, the small claims court

      asked Serenity Salon’s counsel if he had an attorney fee affidavit. Counsel

      responded that he did not but that he could provide one. The court advised

      counsel that he was supposed to have the affidavit that day so that Pennington

      could have an opportunity to review it and that it was too late to file one.

      When Serenity Salon’s counsel asked the trial court “how [it would] know what

      attorney fees were” the small claims court responded that it guessed it would

      “have to figure that out.” Tr. p. 31.1

[5]   On August 28, 2015, the small claims court issued a judgment ordering

      Pennington to pay Serenity Salon $3081.00 within thirty days. The $3081.00

      included $2,500 for training, $500 for attorney fees, and $81.00 for court costs.

      Serenity Salon appeals the amount of attorney fees awarded.




      1
       The Appellant’s Appendix includes an affidavit of attorney fees that was filed on August 24, 2015. The
      affidavit states that Serenity Salon incurred $1,491.75 in attorney fees. However, because the small claims
      court told Serenity Salon’s counsel on August 21 that it was too late to file an affidavit, and nothing in the
      appendix indicates that the small claims court reviewed the affidavit, we assume that it did not.

      Court of Appeals of Indiana | Memorandum Decision 64A04-1509-SC-1507 | February 18, 2016              Page 3 of 6
                                 Discussion and Decision
[6]   At the outset we note that Pennington has failed to file an appellate brief in this

      matter. In cases where the appellee fails to submit a brief, we will not

      undertake the burden of developing arguments on her behalf. Orlich v. Orlich,

      859 N.E.2d 671, 673 (Ind. Ct. App. 2006). Instead, we apply a less stringent

      standard of review and will reverse upon a showing of prima facie error, which

      is error “at first sight, on first appearance, or on the face of it.” Id.


[7]   Serenity Salon appeals the small claims court’s award of attorney fees.

      Specifically, the salon challenges the reasonableness of the attorney fees. We

      review an award of attorney fees for an abuse of discretion. Benaugh v. Garner,

      876 N.E.2d 344, 347 (Ind. Ct. App. 2007), trans. denied. The trial court has

      broad discretion in assessing attorney fees, and we will reverse only if the award

      is clearly against the logic and effect of the facts and circumstances before the

      court. Id.


[8]   An award of attorney fees must be reasonable. Cavallo v. Allied Physicians of

      Michiana, LLC, 42 N.E.3d 995, 1002 (Ind. Ct. App. 2015). 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;




      Court of Appeals of Indiana | Memorandum Decision 64A04-1509-SC-1507 | February 18, 2016   Page 4 of 6
              (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;


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


              (8) Whether the fee is fixed or contingent.


      Id.


[9]   Here, our review of the evidence reveals that this was a small claims court case

      regarding the violation of a two-page pre-employment contract. The complaint

      was a one-page long fill-in-the-blank form. There is no dispute that Pennington

      left the job eight months early and triggered the agreement’s $2,500.00 penalty

      and attorney fee provisions. The hearing included two witnesses and generated

      a thirty-page transcript. It was a small case that should not have precluded

      other employment by the lawyer. No evidence was presented regarding the

      other factors.


      Court of Appeals of Indiana | Memorandum Decision 64A04-1509-SC-1507 | February 18, 2016   Page 5 of 6
[10]   Based on this evidence, and in light of the small claims court’s broad discretion,

       the $500.00 award of attorney fees is not clearly against the logic and effect of

       the facts and circumstances before the small claims court.


[11]   Affirmed.

       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 64A04-1509-SC-1507 | February 18, 2016   Page 6 of 6
