MEMORANDUM DECISION                                                          FILED
Pursuant to Ind. Appellate Rule 65(D), this                            Jul 06 2018, 10:05 am

Memorandum Decision shall not be regarded as                                 CLERK
precedent or cited before any court except for the                       Indiana Supreme Court
                                                                            Court of Appeals
purpose of establishing the defense of res judicata,                          and Tax Court

collateral estoppel, or the law of the case.



APPELLANTS PRO SE                                         ATTORNEY FOR APPELLEES
Penelope Stillwell                                        EAGLE-KIRKPATRICK
William Stillwell                                         MANAGEMENT COMPANY, INC.,
Clearwater Beach, Florida                                 KIRKPATRICK MANAGEMENT
                                                          COMPANY, INC., AND SYCAMORE
                                                          SPRINGS SECTION C
                                                          HOMEOWNERS ASSOCIATION, INC.
                                                          Bradley J. Schulz
                                                          State Farm Litigation Counsel
                                                          Indianapolis, Indiana

                                                          ATTORNEY FOR APPELLEE G.T.
                                                          SERVICES, INC., D/B/A GREEN
                                                          TOUCH SERVICES, INC.
                                                          Richard A. Rocap
                                                          Rocap Law Firm LLC
                                                          Indianapolis, Indiana

                                                          ATTORNEY FOR APPELLEE COHEN
                                                          & MALAD, LLP
                                                          Carol Nemeth Joven
                                                          Price Waicukauski Joven & Catlin, LLC
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Penelope Stillwell and William                            July 6, 2018
Stillwell,                                                Court of Appeals Case No.
                                                          49A02-1708-CT-1919



Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CT-1919 | July 6, 2018              Page 1 of 10
      Appellants-Plaintiffs,                                    Appeal from the Marion Superior
                                                                Court
              v.
                                                                The Honorable John F. Hanley,
                                                                Judge
      Eagle-Kirkpatrick Management
      Company, Inc., Kirkpatrick                                Trial Court Cause No.
                                                                49D11-1110-CT-41092
      Management Company, Inc.,
      G.T. Services, Inc., d/b/a Green
      Touch Services, Inc., and
      Sycamore Springs Section C
      Homeowners Association, Inc.,
      Appellees-Defendants,

             v.

      Cohen & Malad, LLP,

      Appellee-Intervenor.




      Friedlander, Senior Judge

[1]   On December 13, 2011, William Stillwell (“Dr. Stillwell”) slipped and fell on

      the front steps of his home located in the Sycamore Springs development in

      Indianapolis. Dr. Stillwell subsequently filed a lawsuit against Eagle-

      Kirkpatrick Management Company, Inc., Kirkpatrick Management Company,

      Inc., G.T. Services, Inc. d/b/a Green Touch Services, Inc., and Sycamore

      Springs Section C Homeowners Associations, Inc (collectively “the

      Defendants”). Dr. Stillwell’s wife, Mrs. Stillwell, pursued a claim for loss of

      consortium. The Stillwells retained attorney Daniel S. Chamberlain to

      represent them in their lawsuit. At some point during the course of the lawsuit,

      Chamberlain moved to the law firm Cohen & Malad. The Stillwells allowed
      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CT-1919 | July 6, 2018    Page 2 of 10
      Chamberlain to continue to represent them after his move to Cohen & Malad.1

      Cohen & Malad had a contingency fee agreement with the Stillwells in which it

      was entitled to one-third of any recovery and reimbursement for advanced

      expenses.


[2]   Meanwhile, the trial court scheduled the jury trial for August 2, 2016. As the

      trial date was approaching, the Defendants filed a motion to exclude testimony

      of one of the Stillwells’ witnesses or, as an alternative, a motion to continue the

      trial in order to conduct additional discovery. The trial was continued to

      January 10, 2017.


[3]   Shortly after the continuance, the parties engaged in settlement discussions. In

      August of 2016, Cohen & Malad presented the Stillwells with a memorandum

      of understanding outlining the terms of the settlement. In the fall of 2016, the

      parties formalized the settlement by signing the memorandum. The Defendants

      agreed to pay the Stillwells $200,000 as full settlement of all claims. Per the

      agreement, the parties also worked over the subsequent months to resolve issues

      concerning possible third-party interests in the settlement.2


[4]   As the parties continued to discuss the issues related to the payment of medical

      bills, the new trial date approached. Due to the settlement, Cohen & Malad, on




      1
        On May 3, 2017, Chamberlain assigned his rights to recover attorney fees and expenses under the contract
      to Cohen & Malad.
      2
          Medicare and Anthem had interests in the settlement because they paid some of the relevant medical bills.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CT-1919 | July 6, 2018               Page 3 of 10
      behalf of the Stillwells, filed the memorandum of understanding with the court

      on December 7, 2016. The trial court subsequently removed the January trial

      date from its calendar. In mid-January 2017, the parties finally worked out all

      of the details of the settlement except for release language related to the

      Medicare issue.


[5]   On February 15, 2017, Cohen & Malad notified the Defendants that they

      would be filing a motion to withdraw as counsel for the Stillwells. As the

      settlement checks had been negotiated, Sycamore Springs and Green Touch

      sought to prevent Cohen & Malad from withdrawing, and also filed motions to

      enforce the settlement. By March 1, 2017, the Stillwells had filed pro se

      appearances and the trial court had scheduled a hearing for April 10, 2017.


[6]   On April 10, 2017, all parties except the Stillwells appeared by counsel. The

      Stillwells had been ordered to appear in person, but failed to do so. Mrs.

      Stillwell appeared telephonically, but Dr. Stillwell did not participate. After the

      hearing, the trial court allowed Cohen & Malad to withdraw their

      representation of the Stillwells, and further allowed Cohen & Malad to deposit

      the settlement funds with the clerk. The trial court also granted the motions of

      Sycamore Springs and Green Touch to enforce the settlement agreement.


[7]   On July 11, 2017, the trial court held a hearing on various motions. The

      Stillwells failed to appear at the hearing in any manner, despite being ordered to

      attend in person. On July 26, 2017, the trial court signed an order entering

      judgment, dismissing the case with prejudice as to the Defendants, and


      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CT-1919 | July 6, 2018   Page 4 of 10
      otherwise enforcing the settlement agreement reached between the parties. The

      trial court also ordered the clerk to distribute the requested fees 3 and expenses4

      to Cohen & Malad and the remainder of the funds to the Stillwells.


[8]   The Stillwells raise several restated issues on appeal: (1) whether the trial court

      properly enforced the settlement agreement; (2) whether the trial court abused

      its discretion in allowing Cohen & Malad to intervene; and (3) whether the trial

      court acted within its discretion in ordering that Cohen & Malad be paid for

      their fees and expenses.



                                  I. Settlement Agreement
[9]   The Stillwells contend that the trial court erred when it found that the

      settlement agreement between the parties was enforceable. “Indiana strongly

      favors settlement agreements.” Georgos v. Jackson, 790 N.E.2d 448, 453 (Ind.

      2003). A settlement is a contract between two or more parties to amicably settle

      or adjust their differences on terms to which they agree. Vance v. Lozano, 981

      N.E.2d 554 (Ind. Ct. App. 2012). It is well-established that if a “party agrees to

      settle a pending action, but then refuses to consummate [his or her] settlement

      agreement, the opposing party may obtain a judgment enforcing the

      agreement.” Georgos, 790 N.E.2d at 453. Generally, a settlement agreement is



      3
        Specifically, Cohen & Malad was entitled to $66,666.67 under its agreement with the Stillwells (one-third of
      the $200,000 recovery), but voluntarily reduced its fee to $54,042.14 (not including expenses).
      4
       Despite the fact that Cohen & Malad incurred an additional $4000 in expenses after the settlement recap
      was signed, the firm agreed to accept $36,560.35 in expenses instead of $40,560.35.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CT-1919 | July 6, 2018              Page 5 of 10
       not required to be in writing. MH Equity Managing Member, LLC v. Sands, 938

       N.E.2d 750 (Ind. Ct. App. 2010), trans. denied. “Settlement agreements are

       governed by the same general principles of contract law as other agreements.”

       Id. at 757.


[10]   The existence of a contract is a question of law. Batchelor v. Batchelor, 853

       N.E.2d 162 (Ind. Ct. App. 2006). To be valid and enforceable, a contract must

       be reasonably certain and definite. Zukerman v. Montgomery, 945 N.E.2d 813

       (Ind. Ct. App. 2011). “All that is required to render a contract enforceable is

       reasonable certainty in the terms and conditions of the promises made,

       including by whom and to whom; absolute certainty in all terms is not

       required.” Id. at 819. Only essential terms are necessary for a contract to be

       enforceable. Id.


[11]   In this case, the parties agreed to essential terms regarding the following topics

       in their memorandum of understanding. Specifically, the memorandum

       contained the following terms:

               1. Defendants shall pay, or cause to be paid to, the Plaintiffs a
               total of Two Hundred Thousand Dollars ($200,000.00) as full
               settlement of all claims, subject to the terms in this Memorandum
               of Understanding.
               2. The Plaintiffs shall sign an appropriate release, or releases, at a
               later date formalizing the terms and conditions of the resolution
               of this matter.
               3. The Plaintiffs shall sign a Stipulation of Dismissal and this
               case shall be dismissed with prejudice.
               4. The Plaintiffs agree to provide the Defendants documentation
               of reduction to any lien(s) and/or subrogation interest(s) from the
       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CT-1919 | July 6, 2018   Page 6 of 10
               respective lienholder(s) and/or subrogee(s). The Defendants shall
               prepare separate drafts to each lienholder and/or subrogee, with
               the remaining balance being issued to the Plaintiffs and their
               counsel.

       Appellees’ Joint App. Vol II pp. 28–29.


[12]   The Stillwells confirmed the settlement in a settlement recap that they executed

       with Cohen & Malad on August 22, 2016. This recap outlined the gross

       recovery, fees and expenses, liens, and the ultimate recovery. The recap also

       stated that “we have accepted the settlement offer after serious reflection and

       deliberation . . . [and] have concluded that this offer is in our own best

       interests.” Appellees’ Joint App. Vol. II p. 136. The only issue that was not

       fully addressed in the settlement agreement was the language of the release for

       Medicare. The language regarding the release(s), however, was not a material

       part of the agreement. It is clear from the terms of the memorandum that the

       main issue, the settlement between the parties for the Stillwells’ claims, was

       unambiguously resolved. “A court will not find that a contract is so uncertain

       as to preclude specific enforcement where a reasonable and logical

       interpretation will render the contract valid.” Conwell v. Gray Loon Outdoor

       Mktg. Group, Inc., 906 N.E.2d 805, 813 (Ind. 2009). The trial court did not err

       in finding that an enforceable settlement agreement existed.



                                     II. Intervenor Status
[13]   The Stillwells also argue that the trial court abused its discretion when it

       allowed Cohen & Malad to intervene. We review a trial court’s ruling on a

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CT-1919 | July 6, 2018   Page 7 of 10
       motion to intervene pursuant to Indiana Trial Rule 24 for an abuse of discretion

       and assume that all facts in the motion are true. Himes v. Himes, 57 N.E.3d 820

       (Ind. Ct. App. 2016), trans. denied. “An abuse of discretion occurs when the

       trial court’s decision is against the logic and effect of the facts and

       circumstances before the court or the reasonable and probable inferences to be

       drawn therefrom.” Granite State Ins. Co. v. Lodholtz, 981 N.E.2d 563, 566 (Ind.

       Ct. App. 2012), trans. denied.


[14]   Indiana Trial Rule 24 (A) provides in relevant part as follows:

               Upon timely motion anyone shall be permitted to intervene in an
               action: ... (2) when the applicant claims an interest relating to a
               property, fund or transaction which is the subject of the action
               and he is so situated that the disposition of the action may as a
               practical matter impair or impede his ability to protect his interest
               in the property, fund or transaction, unless the applicant’s interest
               is adequately represented by existing parties.

       Here, the evidence shows that Cohen & Malad had the right to intervene

       because it had a charging lien and an interest in the settlement funds pursuant

       to the terms of its agreement with the Stillwells. A charging lien “is the

       equitable right of attorneys to have the fees and costs due [to] them for services

       in a suit secured out of the judgment or recovery in that particular suit.” Wilson

       v. Sisters of St. Francis Health Servs. Inc., 952 N.E.2d 793, 796 (Ind. Ct. App.

       2011). Because Cohen & Malad had a charging lien—a valid interest under

       Indiana Trial Rule 24(A)—at the time that it filed its motion to intervene, the

       trial court did not abuse its discretion when it allowed Cohen & Malad to

       intervene.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CT-1919 | July 6, 2018   Page 8 of 10
                                 III. Fees and Expenses
[15]   Finally, the Stillwells argue that the trial court abused its discretion when it

       ordered that Cohen & Malad be paid for their fees and expenses. “We review

       the trial court’s decision to award attorney fees under an abuse of discretion

       standard.” Bacompt Sys., Inc. v. Ashworth, 752 N.E.2d 140, 146 (Ind. Ct. App.

       2001), trans. denied. The record shows that Cohen & Malad had a contingency

       agreement that specified that it would be entitled to a one-third contingency fee

       if the Stillwells obtained a judgment or settlement on their personal injury

       claim. The fee agreement further provided that Cohen & Malad would be

       reimbursed for any expenses advanced. The Stillwells were provided with

       detailed documentation of Cohen & Malad’s expenses and approved such

       expenses when they signed the settlement recap in August of 2016. Specifically,

       the settlement recap stated, “We hereby acknowledge that the above settlement

       is accurate and in accordance with our contract with the offices of Cohen &

       Malad.” Appellees’ Joint App. Vol. II p. 233. The Stillwells make several

       arguments regarding lavish and improper spending by Cohen & Malad, but

       those claims are not supported by any evidence in the record. Moreover, there

       is no evidence to suggest that Cohen & Malad was not entitled to its fees and

       expenses in accordance with its contract with the Stillwells. The Stillwells have

       failed to establish that the trial court abused its discretion in awarding Cohen &

       Malad’s fees and expenses.


[16]   Judgment affirmed.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CT-1919 | July 6, 2018   Page 9 of 10
Robb, J., and Mathias, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CT-1919 | July 6, 2018   Page 10 of 10
