FOR PUBLICATION
                                                          FILED
                                                        Oct 25 2012, 9:06 am


                                                               CLERK
                                                             of the supreme court,
                                                             court of appeals and
                                                                    tax court




ATTORNEYS FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

W. BRENT THRELKELD                           DEAN ARNOLD
ASHLIE K. KEATON                             KATHERINE G. KARRES
Threlkeld & Associates                       Ken Nunn Law Office
Indianapolis, Indiana                        Bloomington, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

STATE FARM MUTUAL AUTOMOBILE                 )
INSURANCE COMPANY,                           )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )       No. 49A02-1202-CT-68
                                             )
KEN NUNN LAW OFFICE,                         )
                                             )
     Appellee-Plaintiff.                     )


                  APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Theodore M. Sosin, Judge
                         Cause No. 49D02-1012-CT-55347



                                  October 25, 2012


                            OPINION - FOR PUBLICATION


BROWN, Judge
       State Farm Mutual Automobile Insurance Company (“State Farm”) appeals the

trial court’s order denying its motion for summary judgment against the Ken Nunn Law

Office (“Nunn”). State Farm raises one issue, which we restate as whether the court

erred in denying its motion for summary judgment. We reverse and remand.

       The relevant facts follow. In May 2009, Kenneth Henderson was a passenger in a

vehicle involved in an accident or chain reaction collision involving a vehicle driven by

Joshua Beal.1 Henderson entered into a Fee Agreement with Nunn pursuant to which

Nunn would represent Henderson “for any claims [he had] against: The insurance

company for the person or persons at fault” in connection with the accident. 2 Appellant’s

Appendix at 35.

       On May 21, 2009, State Farm, Beal’s insurer, received a letter from Nunn giving

State Farm notice of Nunn’s representation of Beal. State Farm received a settlement

demand from Nunn on November 16, 2009.

       Nunn initiated a lawsuit on behalf of Henderson against Beal on or about March 2,

2010. Henderson sent a letter to Nunn dated March 22, 2010 stating that he was not

satisfied with the way the case had been handled by Nunn and that he no longer needed

Nunn’s services.




       1
         This is the spelling used by the parties in their summary judgment motions and appellate briefs
and in a designated affidavit of a claim representative for State Farm; however, the complaint filed by
Nunn on behalf of Henderson in the underlying personal injury lawsuit refer to “Joshua Bieal.”
Appellant’s Appendix at 34.
       2
          Pursuant to the Fee Agreement, Henderson agreed to pay Nunn “1/3 of all amounts recovered or
offered (no fee on property damage).” Appellant’s Appendix at 35.
                                                   2
      On April 12, 2010, Nunn filed a “Notice of Lien for Attorney’s Fees” (the “Notice

of Lien”) with the court and sent copies to Henderson and State Farm. Id. at 41. The

Notice of Lien provided in part:

      Comes now [Nunn] and hereby files their claim and lien against
      [Henderson] in regards to any settlements or judgments rendered in favor of
      [Henderson]. The claim is as follows:

             For legal services rendered to [Henderson] in regards to this
             lawsuit in the amount to be determined based upon quantum
             meruit, statutory and case law; and for expenses in the sum of
             $541.62 advanced on behalf of [Henderson] in regards to his
             claim and this lawsuit.

Id. at 41-42. State Farm received a copy of the Notice of Lien on April 16, 2010.

      On April 19, 2010, upon a motion to withdraw appearance by Nunn, the court

entered an order that the appearance of Nunn be withdrawn.

      On or about April 27, 2010, State Farm and Henderson reached an agreement in

settlement of Henderson’s claim for the amount of $12,146.15.         State Farm issued

payment to Henderson in the amount of $11,604.53 and issued separate payment to Nunn

in the amount of $541.62 for expenses advanced on behalf of Henderson.

      On December 28, 2010, Nunn filed a Complaint for Damages against State Farm

and Henderson alleging that Henderson failed to compensate Nunn for the legal services

it provided and that State Farm and Henderson had a duty and failed to protect the

“Quantum Meruit Attorney’s Fee Lien” of Nunn. Id. at 7-8.

      On August 16, 2011, State Farm filed a motion for summary judgment arguing

that Nunn did not allege any facts which would support a claim in equity or contract

against State Farm for liability for attorney fees for services rendered to Henderson. On


                                            3
October 14, 2011, Nunn filed a response to State Farm’s motion arguing that State Farm

had notice of Nunn’s attorney fee lien and failed to honor the lien, that State Farm had a

duty to notify Nunn and the court of its intent to settle Henderson’s claim, that even

though a client has a right to discharge an attorney the attorney is entitled to

compensation for the attorney’s work as a proportion of the contingency fee or for the

reasonable value of services rendered, and that Nunn relied on State Farm’s past practice

of voluntarily paying attorney fee liens. On October 31, 2011, State Farm filed a reply

arguing that it had no duty to inform Nunn of the settlement of Henderson’s claim

because Nunn was no longer Henderson’s attorney of record or representing Henderson’s

interests at the time of settlement, that Nunn may not recover against State Farm under a

theory of quantum meruit because the theory only permits recovery when some benefit

has been incurred by the party against whom recovery is sought, and that Nunn failed to

produce any evidence that State Farm was unjustly enriched by the legal services Nunn

provided or that State Farm had a regular practice of voluntarily paying attorney fee liens.

       In an order dated November 28, 2011, and file-stamped November 30, 2011, the

court denied State Farm’s summary judgment motion. On December 26, 2011, Nunn

filed a motion for default judgment against Henderson. On December 27, 2011, State

Farm requested the trial court to certify the November 28, 2011 order for interlocutory

appeal. On January 4, 2010, the court entered an order granting default judgment against

Henderson in the amount of $3,818.72 plus costs of $289 and an order certifying the

November 28, 2011 order for interlocutory appeal. This court accepted jurisdiction of the

interlocutory appeal.


                                             4
      The issue is whether the trial court erred in denying State Farm’s motion for

summary judgment against Nunn. Summary judgment is appropriate only where there is

no genuine issue of material fact and the moving party is entitled to judgment as a matter

of law. Ind. Trial Rule 56(c); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756

N.E.2d 970, 973 (Ind. 2001). All facts and reasonable inferences drawn from those facts

are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a

summary judgment motion is limited to those materials designated to the trial court. Id.

We must carefully review a decision on summary judgment to ensure that a party was not

improperly denied its day in court. Id. at 974. Any doubt as to the existence of an issue

of material fact, or an inference to be drawn from the facts, must be resolved in favor of

the nonmoving party. Cowe v. Forum Grp., Inc., 575 N.E.2d 630, 633 (Ind. 1991).

      A party moving for summary judgment bears the initial burden of showing no

genuine issue of material fact and the appropriateness of judgment as a matter of law.

Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 975 (Ind. 2005). If the

movant fails to make this prima facie showing, then summary judgment is precluded

regardless of whether the non-movant designates facts and evidence in response to the

movant’s motion. Id. In reviewing a trial court’s ruling on a motion for summary

judgment, we may affirm on any grounds supported by the Indiana Trial Rule 56

materials. Catt v. Bd. of Commr’s of Knox Cnty., 779 N.E.2d 1, 3 (Ind. 2002).

      State Farm contends that the issue before the trial court was purely legal in nature

with no factual disputes and that State Farm owed no duty to Nunn to protect a claimed

lien for attorney fees arising out of the Fee Agreement between Nunn and his former


                                            5
client Henderson. State Farm argues that “[w]hile Indiana law supports equitable liens

for attorney fees when a party receives a benefit from the services rendered by the

attorney, there is no legal support for the premise that a party who has not received any

benefit from the attorney’s services would owe a duty to protect a claimed lien” and that

“[t]his is especially evident where the attorney is no longer plaintiff’s attorney of record

at the time of settlement.” Appellant’s Brief at 7. State Farm maintains that it owed no

duty to protect Nunn’s claimed equitable lien for attorney fees pursuant to the Fee

Agreement, Indiana’s quantum meruit jurisprudence, Indiana’s statutory law governing

attorney liens, Indiana common law, or a theory of estoppel.

       Nunn argues that it seeks compensation for work it invested in Henderson’s claim.

Nunn argues that “[i]n the interest of fairness and justice, when a lien is filed in Court and

the defendant/insurance company/defense attorney is on notice of the lien, Indiana Courts

should not allow them to ignore the lien.” Appellee’s Brief at 6. Nunn asserts that “[a]s

[it] represented [] Henderson for almost ten (10) months, facilitated the settlement

between [] Henderson and State Farm, and filed a valid lien for attorney’s fees . . . , it

does have a valid claim for fees against the defendants, including State Farm” and that

Nunn “is entitled to the reasonable value of the services rendered to the client under the

theory of quantum meruit, or value conferred.” Id. at 7. Nunn further argues that State

Farm had a duty to notify Nunn and the trial court of its intent to settle directly with

Henderson to allow the court to determine if Nunn had a valid lien against State Farm and

that State Farm breached this duty. Nunn also argues that it relied on State Farm’s prior

practice of voluntarily paying attorney fee liens.


                                              6
       In its reply brief, State Farm states that it does not dispute that a valid lien for

attorney fees may exist in Nunn’s favor against his former client Henderson or that it may

be entitled to compensation by Henderson but nevertheless that Nunn cannot recover

from State Farm. State Farm also argues that Nunn does not cite to authority for its

position that it had a valid lien against the settlement proceeds and that Nunn failed to

designate evidence to support its right to recover under an estoppel theory.

       Before addressing State Farm’s arguments related to a purported attorney lien and

quantum meruit, we note that the designated evidence reveals that in May 2009

Henderson retained Nunn to represent him in his lawsuit against Beal, who was insured

by State Farm; that Henderson sent a letter dated March 22, 2010, to Nunn discharging

Nunn as his attorney in the lawsuit against Beal; that on April 12, 2010, Nunn filed the

Notice of Lien, which was received by State Farm on April 16, 2010; that on April 19,

2010, the court entered an order that the appearance of Nunn be withdrawn upon its

motion; and that on or about April 27, 2010, State Farm and Henderson reached an

agreement in settlement of Henderson’s claim. We observe that Nunn filed its Notice of

Lien after it was discharged from its representation of Henderson and before there was a

settlement or judgment in the lawsuit. The Fee Agreement was between Henderson and

Nunn, and State Farm was not a party to the agreement.

A.     Attorney Fee Lien

       With respect to liens available for the protection of attorney fees, Indiana

recognizes a lien established by statute and a lien arising in equity. See Wilson v. Sisters

of St. Francis Health Serv.’s Inc., 952 N.E.2d 793, 796 (Ind. Ct. App. 2011) (citing State


                                             7
ex rel. Shannon v. Hendricks Circuit Court, 243 Ind. 134, 139, 183 N.E.2d 331, 333

(1962)). See also Timothy O’Hara & Curtis T. Jones, Collection of Attorney Fees by

Assertion of Liens in Indiana, RES GESTAE, Dec. 2007, at 25 (reviewing attorney liens

under Indiana law).3

        1.      Statutory Lien

        A statutory attorney fee lien is governed by Ind. Code § 33-43-4-1, which provides

that “[a]n attorney practicing law in a court of record in Indiana may hold a lien for the

attorney’s fees on a judgment rendered in favor of a person employing the attorney to

obtain the judgment.”4 As admitted by Nunn in a response to a request for admissions,

the statutory lien is inapplicable in this case because no judgment was entered.5 See

Wilson, 952 N.E.2d at 796 n.1 (noting the requirements of Ind. Code § 33-43-4-1 and

finding that the statutory lien was inapplicable because no judgment had been entered).

See also O’Hara & Jones, supra, at 26 (noting that “an attorney is only entitled to a

        3
           It has been noted that “[i]n a strict sense, there is no such thing as a lien upon a thing not in
possession,” that the lien “which an attorney is said to have on a judgment (which is, perhaps, an incorrect
expression) is merely a claim to the equitable interference of the court to have the judgment held as a
security for his debt,” and that “[a]n attorney’s lien upon a judgment, as by force of usage we are
permitted to designate his claim upon the judgment recovered, is founded upon the same equity which
gives to every person who uses his labor and skill upon the goods of another, at this request, the right to
retain the goods till he is paid for his labor.” Leonard A. Jones and Edward White, A TREATISE ON THE
LAW OF LIENS, COMMON LAW, STATUTORY, EQUITABLE AND MARITIME § 155, at 142 (3rd ed. 1914)
(citations and internal quotation marks omitted).
        4
           The general rule that an attorney has a lien on a judgment obtained for the attorney’s client “was
first established by the courts. In some states the lien did not exist till it was declared by statute; and in
several states, in which the courts had established the lien, this has by statute been extended or modified
so that it is quite a different thing from the lien which the courts established and enforced.” Jones &
White, supra, § 158, at 145 (citations and internal quotation marks omitted). The majority of states have
enacted a statute governing an attorney lien upon a judgment. See id., § 158, at 145 n.22 (providing a
summary of the states in which this lien prevails in some form, including the State of Indiana); § 158, at
145 n.23 (providing a summary of the several states in which the lien does not exist).
        5
          Specifically, in the response Nunn admitted that Ind. Code § 33-43-4-1 “is inapplicable to the
attorney lien alleged and at issue in this cause of action.” Appellant’s Appendix at 45.
                                                      8
statutory lien for the attorney fees on any ‘judgment rendered’ in favor of the client,” that

“[t]his ‘judgment’ requirement has been strictly enforced,” and that “an attorney seeking

a lien for work rendered on a case that settles must appeal to the court’s equitable powers

or assert a retaining lien over something of the client’s that the attorney possesses”).

       2.     Equitable Lien

       Indiana courts have also recognized liens which arise in equity to protect attorney

fees. See Wilson, 952 N.E.2d at 796; see also Shannon, 243 Ind. at 139, 183 N.E.2d at

333 (“The rule is well established in Indiana that the statutory lien is not the only lien

available for the security of an attorney in performing services beneficial to his client, but

that equity supplies a lien independent of statute”) (citing Justice v. Justice, 115 Ind. 201,

208, 16 N.E. 615 (1888); Koons, Adm’r, et al. v. Beach, 147 Ind. 137, 139-140, 45 N.E.

601, 46 N.E. 587 (1897), reh’g denied); see also Leonard A. Jones and Edward White, A

TREATISE ON THE LAW OF LIENS, COMMON LAW, STATUTORY, EQUITABLE AND

MARITIME § 174, at 162-164 (3rd ed. 1914) (providing that under Indiana law an attorney

may also have an equitable lien for their fees upon funds they secure by their services for

their clients). An attorney lien of this variety may be characterized as a retaining lien or

as a charging lien. See Wilson, 952 N.E.2d at 796.

       “A retaining lien is the right of the attorney to retain possession of a client’s

documents, money, or other property which comes into the hands of the attorney

professionally, until a general balance due him for professional services is paid . . . and

exists as long as the attorney retains possession of the subject matter.”          Id. (citing

Shannon, 243 Ind. at 139-140, 183 N.E.2d at 333). See also Bennett v. NSR, Inc., 553


                                              9
N.E.2d 881, 882-883 (Ind. Ct. App. 1990) (“It is considered equitable that lawyers be

allowed to retain documents and other personal property of their clients until paid.”).

Nunn does not claim a right to retain possession of Henderson’s property, i.e., money or

other property, until the balance due for professional services is paid, and thus a retaining

lien is inapplicable in this case. See Wilson, 952 N.E.2d at 796 (noting that the attorney

never had possession of his client’s money, and consequently, that a retaining lien was

inapplicable).

       In Indiana, “[a] charging lien is the equitable right of attorneys to have the fees

and costs due them for services in a suit secured out of the judgment or recovery in that

particular suit.” Wilson, 952 N.E.2d at 796. This court has stated that “[r]etaining liens

are to be distinguished from charging liens which are the equitable rights of attorneys to

have the fees and costs due them for services in a suit secured out of the judgment or

recovery in that particular suit” and that “[u]nlike retaining liens, possession is not

essential to a charging lien.” Bennett, 553 N.E.2d at 883.

       We observe that, while Nunn may have such a valid and enforceable charging lien

as to amounts recovered by Henderson in his suit against Beal,6 Nunn does not point to

authority for the proposition that it has a valid charging lien or may enforce such a lien

against an entity that is not and never was Nunn’s client. Wilson, 952 N.E.2d at 796

(noting that the attorney cited no authority for the proposition that insurance payments

made to a third party under the client’s health insurance policy were subject to a charging

lien). Although a number of states do not recognize an equitable charging lien, see 23

       6
           We do not address the issue of Nunn’s entitlement to attorney fees against Henderson.

                                                    10
WILLISTON ON CONTRACTS § 62:11 (4th ed.) (noting that, “[i]n some jurisdictions, there

are cases holding that a common law charging lien exists, but in most states it rests

entirely on statutes”), as previously mentioned Indiana is among the states that has

recognized a charging lien separate from the attorney lien statute. See Shannon, 243 Ind.

at 139, 183 N.E.2d at 333.

        Indiana’s early opinions on this issue attempted to describe the limits of an

equitable lien for the protection of attorney fees.7 The case of Hanna v. Island Coal Co.,

5 Ind. App. 163, 31 N.E. 846, 847 (1892), provides some guidance on this issue where a

compromise or settlement was reached.

        In Hanna, Calvin Hanna brought an action against Island Coal Co. to recover

attorney fees. 5 Ind. App. 163, 31 N.E. at 847. Charles Starke had previously employed

Hanna to bring a suit against Island Coal Co. for personal injuries Starke sustained in

Island Coal Co.’s coal mines by reason of the company’s negligence. Id. Hanna alleged

that Island Coal Co., knowing these facts and after suit had been commenced,

compromised and settled the cause of action with Starke without the knowledge or

consent of Hanna and paid a settlement amount directly to Starke. Id. Hanna further

alleged that, prior to the settlement, he had given notice in writing to Island Coal Co. of

“his rights in the premises.” Id. Hanna also alleged that Island Coal Co. entered into a

fraudulent collusion with Starke and compromised and settled the cause of action with




        7
         For a discussion of the history of attorney liens in Indiana, including some discussion of Hanna,
infra, and other early Indiana cases, see Benjamin Watson, THE LAW OF INDIANA RELATING TO
STATUTORY LIENS (W.H. Anderson 1996).

                                                   11
him, knowing him to be insolvent, for the purpose of cheating Hanna out of his fees and

out of his lien for services and expenses. Id. at 848.

       The court, conceding that Hanna had the right to receive from Starke the money

expended by him as well as for the services rendered, turned to the issue of whether the

facts stated made a cause of action against Island Coal Co. Id. at 847. The court noted

that the statutory lien in effect at the time was available only after a judgment was

rendered and that, because the suit was compromised before judgment, the statute had no

application. Id. After discussing several prior opinions which found that an attorney may

hold a lien for fees without the aid of the statute, the court noted that “until after

judgment, the client may settle and compromise and release the cause of action in any

manner he pleases without consulting his attorney, and the attorney has no power to

prevent it.” Id. at 848. The court stated that “[i]n such a case a lien cannot be acquired

before judgment, even by agreement between the attorney and client, that will prevent the

client from compromising and releasing the cause of action without the consent of the

attorney, although the defendant may have notice of the agreement.” Id. The court

further held:

       If the cause of action is one for unliquidated damages, and is not
       assignable, the client cannot give his attorney any lien upon it that will
       prevent a settlement or compromise by the parties before judgment, even if
       the amount is definitely fixed, and an agreement made that the same shall
       become a lien, and the adverse party notified of the fact. Actions for
       slander and libel, assault and battery, personal injuries resulting from the
       negligent conduct of others, are within the rule.




                                             12
Id. The court then noted that it was apparent that the action for personal injury alleging

negligence was unassignable and was for unliquidated damages.8 Id.

        Based on the foregoing, the court, noting that Hanna’s right to proceed against

Starke would remain unimpaired, held that Starke had the right to compromise or release

his claim against Island Coal Co. at any time before judgment, that there were no charged

facts showing fraudulent collusion between Island Coal Co. and Starke, that “[t]he

contract to bring the action was made with Starke by [Hanna]” and “[t]he appellant had

nothing to do with it,” that “[h]aving settled and compromised [the negligence lawsuit]

before judgment, [Island Coal Co.] was released,” and that Hanna “having acquired no

lien upon or interest in such cause of action, no obligation in his favor was created by the

transaction against [Island Coal Co.].” Id.

        Several subsequent Indiana opinions and treatise articles have discussed the

analysis in Hanna. See Olczak v. Marchelewicz, 98 Ind. App. 244, 188 N.E. 790, 792


        8
           The court in Hanna cited to Courtney v. McGavock, 23 Wis. 619 (1869), in support of the
distinction between the liquidated and unliquidated nature of a client’s claim. See Hanna, 31 N.E. at 847.
In In re Edl, the court noted that in response to the rule established in Courtney and subsequent cases, the
Wisconsin legislature enacted a statutory attorney’s lien. 207 B.R. 611, 614 (Bkrtcy. W.D. Wis. 1997).
The statute referenced provided in part that “[a]ny person having or claiming a right of action, sounding
in tort or for unliquidated damages on contract, may contract with any attorney to prosecute the action
and give the attorney a lien upon the cause of action and upon the proceeds or damages derived in any
action fought for the enforcement of the cause of action . . . .” Id. at 614-615 (emphasis added). The
court in In re Edl addressed the specific language of the statute and what types of claims may be covered
by its language. See id. 615-617. In any event, Indiana’s attorney lien statute is not similar to the
Wisconsin statute. Further, the current Indiana statute is similar to the version in effect at the time of
Hanna and was not revised by the legislature to respond to the distinction articulated in Hanna between
claims which were unassignable or were for unliquidated damages and those which were not. See Ind.
Code § 33-43-4-1 (providing that an attorney “may hold a lien for the attorney’s fees on a judgment
rendered in favor of a person employing the attorney to obtain the judgment”); Hanna, 31 N.E. at
847 (“The only statutory method of obtaining a lien by an attorney against his client in this state is given
by section 5276 of the Revised Statutes, and that is only ‘on any judgment rendered in favor of any
person or persons employing such attorney to obtain the same’”). See also Watson, supra, at 38 (citing
Hanna and noting that in Indiana no equitable lien can be acquired before judgment in an action for
unliquidated damages which includes an action for personal injuries).
                                                    13
(1934) (citing Hanna and noting that no lien can be acquired before judgment that would

prevent the client from compromising and releasing his claim without the attorney’s

consent and holding that “[t]he fund upon which appellant claims a lien passed into the

hands of his client who had the right to make a settlement” and that “[u]nder such

circumstances, there is no enforceable lien”); Miedreich v. Rank, 82 N.E. 117, 119 (Ind.

Ct. App. 1907) (stating that “[t]hough a party may, without the consent of his attorney,

make a bona fide adjustment with the adverse party, and dismiss an action or a suit before

a judgment or a decree has been rendered therein, if it appears, however, that such

settlement was collusive and consummated pursuant to the intent of both parties to

defraud the attorney, the court in which the action or suit was pending may interfere to

protect him, as one of its officers . . . .”); Benjamin Watson, THE LAW OF INDIANA

RELATING TO STATUTORY LIENS (W.H. Anderson 1996), at 38-39 (reviewing Hanna and

other early Indiana opinions, noting the distinction between claims for liquidated and

unliquidated damages and that no equitable lien can be acquired before judgment in an

action for unliquidated damages such as for personal injury actions, and stating that “[t]he

fact that the defendant in the action for damages made a settlement with the plaintiff after

notice from the attorney of the amount due him from his client for legal services and

money expended, and the further fact of the insolvency of the client, would in nowise

render the defendant liable to the attorney”); Jones & White, supra, § 174, at 162-164

(reviewing liens for the protection of attorney fees in Indiana and stating in part that an

attorney “can have no lien on a fund secured for his client by compromise where no

judgment is entered”) (citing Koons, 147 Ind. 137, 45 N.E. 601, 46 N.E. 587).


                                            14
       Further, a number of other states have arrived at the same or similar result where

an attorney’s client or former client settles or compromises a claim. See Robert L. Rossi,

ATTORNEYS’ FEES, Volume 2, § 12:26 (3rd ed. 2012) (providing that “[b]y dismissing,

compromising, or settling his cause of action, a client may defeat his attorney’s right to a

lien which he would otherwise have had, even though the client agreed to pay the

attorney a percentage of the proceeds of any judgment recovered”) (footnotes omitted)

(citing Lyman v. Campbell, 182 F.2d 700, 701-702 (D.C. Cir. 1950) (noting, where an

attorney represented plaintiffs pursuant to contingent fee arrangements, the attorney filed

a notice of lien when he learned of the defendant’s intended action of making certain

payments to plaintiffs, and the defendant later made payments to one or more of the

plaintiffs by way of a set-off to a previous deficiency, the prevailing rules related to

charging liens and that “[w]e have not been advised of any decisions in this or any other

jurisdiction in which the courts have in the absence of statute granted relief to an attorney

situated as the appellant is in this case, namely, where settlement has been effected

through set-off, prior to the obtaining of a judgment or decree, and where no conspiracy

to defeat the attorney’s claim has been charged” and holding that “under the facts

presented, and on the basis of the well-established authorities in this field, the District

Court was right in denying the [attorney’s] motion” and “[t]he [attorney] must look to his

client for compensation”); Coughlin v. New York, 71 N.Y. 443, 443 (1877) (providing

that “[a] party having a cause of action, in its nature not assignable, cannot, by any

agreement before judgment . . . give his attorney any interest therein” and that “[a]

settlement between the parties and a release of such a cause of action is a bar to an action


                                             15
commenced thereon, although by agreement between the plaintiff and his attorney at the

commencement of the action the latter was to receive a share of any recovery therein for

his services, and although the defendant had notice of the agreement, . . . nor will the

court intervene and allow the action to be prosecuted for the sole purpose of enabling the

attorney to reap the benefits of the agreement”)). See also Villani v. Edwards, 554 S.E.2d

184, 185-186 (Ga. Ct. App. 2001) (holding, where a client employed an attorney to

represent her in an action arising out of an automobile collision involving certain

defendants and the client terminated the attorney prior to settling her claim against the

defendants, that “[h]ere there was settlement and voluntary dismissal of [the client’s]

suit” and “[t]hus, a final disposition of the suit was made discharging, as a matter of law,

any possible attorney’s lien [the] attorney [] might have been able to establish as to his

purported representation of [the client], whether as counsel of record or otherwise”), cert.

denied (2002).

       Nunn was discharged as Henderson’s counsel prior to Henderson’s settlement with

State Farm. Although Nunn had sent a copy of the Notice of Lien to State Farm,

Henderson was not prevented from compromising or releasing his claim against State

Farm prior to judgment without consulting Nunn. In addition, as Henderson’s action was

for personal injuries, under Hanna no obligation in Nunn’s favor was created by the

transaction against State Farm. Nunn does not cite to authority suggesting that the

directives set forth in Hanna have been modified or do not apply under these

circumstances or point to evidence that shows collusion as described in Miedreich. We

decline to expand upon this State’s previous articulations of the boundaries of the reach


                                            16
of an equitable lien for the protection of attorney fees where the proceeds of the

compromise have been transferred to the attorney’s former client and thus decline to hold

that a charging or equitable lien may be enforced against a party other than Nunn’s

former client under these circumstances where prior to settlement Nunn was no longer

counsel for Henderson and was paid its expenses. See Hanna, 5 Ind. App. 163, 31 N.E. at

847-848. We conclude that Nunn may not seek payment of Henderson’s attorney fees

from State Farm under an equitable attorney fee lien, and State Farm is entitled to

summary judgment on this basis.9

B.      Quantum Meruit

        Further, Nunn may not seek payment of Henderson’s attorney fees from State

Farm based on a theory of quantum meruit. State Farm was not a party to the Fee

Agreement. Nunn does not point to designated evidence that a measurable benefit has

been conferred on State Farm under such circumstances that State Farm’s failure to pay

Henderson’s legal fee, whether in addition to or from the amounts paid to Henderson,

would be unjust. See Wilson, 952 N.E.2d at 796-797 (finding that the attorney presented

no evidence that a measurable benefit had been conferred under such circumstances,

where certain insurance proceeds had been retained without the payment of attorney fees,

that the failure of the attorney to receive payment of his attorney fees from a hospital

would be unjust and that summary judgment on this basis was proper). The designated


        9
          Nunn cites to Nat. Ins. Assoc. v. Parkview Mem. Hosp., 590 N.E.2d 1141 (Ind. Ct. App. 1992).
However, as argued by State Farm, Parkview is distinguishable from this case in part because it addresses
the hospital lien statute, which contains language providing hospitals with a specific interest in property
otherwise accruing to the patient for the amount of healthcare, and not the attorney lien statute, which
does not contain any such language.

                                                    17
evidence shows that any work performed or legal services provided by Nunn was

performed or provided for the benefit of its client Henderson and not for the benefit of

State Farm and does not show that State Farm was unjustly enriched by the legal services

provided by Nunn to Henderson. See Ritzert Co., Inc. v. United Fidelity Bank, FSB, 935

N.E.2d 756, 760 (Ind. Ct. App. 2010) (noting that to prevail on a claim of unjust

enrichment, which is also called quantum meruit, a claimant must establish that a

measurable benefit has been conferred on the defendant under such circumstances that

the defendant’s retention of the benefit without payment would be unjust, that a party

seeking to recover on a theory of quantum meruit must demonstrate that a benefit was

rendered to another at the express or implied request of such other party and also

demonstrate that to allow the defendant to retain the benefit without paying for it would

be unjust) (citations omitted), trans. denied. Also, Nunn does not point to designated

evidence that it relied on State Farm’s payment of its former clients’ attorney fees under

similar circumstances, namely, where Nunn had initiated a lawsuit on behalf of clients

against parties insured by State Farm, Nunn was discharged by the clients, and upon

subsequent settlement of the claims State Farm made payment to Nunn of the attorney

fees owed or allegedly owed by Nunn’s former clients.

       Based upon the designated evidence, we conclude that the court erred in denying

State Farm’s motion for summary judgment and failing to enter summary judgment in

favor of State Farm and against Nunn. For the foregoing reasons, we reverse and remand

for proceedings consistent with this opinion.

       Reversed and remanded.


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FRIEDLANDER, J., and PYLE, J., concur.




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