MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          May 24 2017, 9:01 am
court except for the purpose of establishing
the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jon R. Pactor                                           Jeffrey B. Kolb
Indianapolis, Indiana                                   Charles E. Traylor
                                                        Kolb Roellgen & Kirchoff LLP
                                                        Vincennes, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Clara Briggs,                                           May 24, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        42A01-1610-CC-2235
        v.                                              Appeal from the Knox Superior
                                                        Court
Kolb Roellgen & Kirchoff LLP,                           The Honorable Jeffrey F. Meade,
Appellee-Plaintiff.                                     Special Judge
                                                        Trial Court Cause No.
                                                        42D02-1512-CC-326



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017         Page 1 of 23
                               Case Summary and Issues
[1]   Clara Briggs appeals from the trial court’s entry of summary judgment in favor

      of Kolb Roellgen & Kirchoff, LLP (“Firm”) in its action against Briggs for the

      recovery of unpaid legal fees, collection costs, and prejudgment interest. She

      raises five issues for our review, which we consolidate and restate as: 1) whether

      the trial court abused its discretion in denying Briggs’ motion to transfer venue,

      2) whether the trial court erred in denying her motion for summary judgment,

      and 3) whether the trial court erred in granting the Firm’s motion for summary

      judgment. We conclude the trial court did not abuse its discretion in denying

      Briggs’ motion for change of venue nor did it err in denying Briggs’ motion for

      summary judgment. In addition, the trial court did not err in entering judgment

      in favor of the Firm in the amount of $36,188.41 as to unpaid legal fees.

      However, the Firm is not entitled to a portion of the collection costs awarded

      by the trial court as a matter of law and there is a genuine issue of material fact

      concerning the appropriate amount of prejudgment interest. We therefore

      affirm in part, reverse in part, and remand.



                            Facts and Procedural History
[2]   In March 2013, Briggs contracted with Jeffrey Kolb, a partner at the Firm, to

      represent her in guardianship proceedings involving her mother, Anna Mae

      Strange. The fee agreement, prepared by Kolb and signed by Briggs, includes

      the following provisions:



      Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017   Page 2 of 23
        1. SERVICES. . . . The scope of representation is limited to:
        guardian of Anna May [sic] Strange with these issues: 1.
        Restricted account in order, 2. Payments to Caregivers from rest.
        acct., 3. acct. for caregiver acct. and transfer to rest. acct., 4.
        annual acct. of trust and 5. AIF acct.


                1.1 LIMITED REPRESENTATION. This Agreement is
                limited to the legal services described above and does not
                include nor does it engage me to represent you in any
                matter not described above.


        2. FEES. The fee shall be based on an hourly rate times the
        amount of time spent on your matter.


                Lawyer’s rate                     $300.00
                Legal Assistant’s rate            $200.00
                Clerical Rate                     $20.00


        3. PAYMENT OF FEE. You agree to pay fees to me as follows
        . . .:


                RETAINER. You shall pay to me an initial retainer of
                $500. This amount shall be placed in my trust account.
                Statements for fees or expenses sent to you will be paid
                from the retainer without further notice until the retainer is
                gone. At that time, an additional retainer will be requested
                or all future statements will be sent to you monthly for
                payment within thirty (30) days after the date of the
                statement. First recourse is petition to court for payment
                of fee. To extent not paid by guardianship assets, client is
                liable.


        ***



Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017   Page 3 of 23
              9. ADJUSTMENT. You shall notify me in writing of any
              changes, deletions, additions, corrections or other adjustments to
              [invoices] within thirty (30) days after the date of the statement.
              You agree to waive any and all objections to my statement not
              noticed in writing to me within thirty (30) days after the date of
              the statement.


              10. COLLECTION AND LATE CHARGES. Late payments
              shall bear interest at the rate of 12% per annum from the first day
              payment is due. You shall also pay to me an amount equal to
              the reasonable cost of collection incurred in collecting the late
              payments, recognizing that I will collect the late payment and
              that I am entitled to charge as collection costs my time and
              expenses expended in collecting the payment as normally
              charged to you on an hourly basis.


      Appendix of the Appellant, Volume 2 at 14-15.


[3]   By October 2014, the Firm provided Briggs with a billing statement totaling

      $33,908.20, and during a guardianship hearing held on October 17, 2014, the

      Firm submitted a formal request for payment of this amount from Ms. Strange’s

      estate. A short time later, Ms. Strange passed away, and the Firm also began

      assisting Briggs in handling the closing of Ms. Strange’s estate and sent

      subsequent invoices accordingly. These invoices, which address services

      provided by the Firm from late October 2014 to September 2015 total

      approximately $28,000.00. In July 2015, the Davies County Circuit Court

      ordered the estate to pay the Firm $23,174.00 in attorneys’ fees out of the

      $33,908.20 the Firm originally requested on October 17, 2014, for services

      rendered during the guardianship proceedings.


      Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017   Page 4 of 23
[4]   In December 2015, Briggs and her daughter attempted to contact the Firm to

      raise questions about the billing statements. On December 29, 2015, the Firm

      sued Briggs in Knox County Superior Court to collect the $36,188.41 the Firm

      believed Briggs owed. Of this amount, the Firm sought the $10,734.20 not

      awarded by the Davies Circuit Court in the underlying guardianship case, and

      $25,454.21 in services rendered during the closing of Ms. Strange’s estate. The

      Firm also sought prejudgment interest and collection costs.


[5]   On January 28, 2016, Briggs moved for change of venue, which the trial court

      denied, reasoning in part the motion was untimely. On March 9, 2016, the

      Firm moved for summary judgment. On April 8, 2016, Briggs filed a cross-

      motion for summary judgment. On July 19, 2016, the trial court held a hearing

      on the competing motions for summary judgment. On September 2, 2016, the

      trial court entered an order granting summary judgment in favor of the Firm

      and denying Briggs’ motion for summary judgment. The trial court entered

      judgment in favor of the Firm in the amount of $36,188.41 in unpaid legal fees,

      $7,675.91 in collection costs, and $5,602.86 in prejudgment interest. This

      appeal ensued. Additional facts will be added as necessary.



                                Discussion and Decision

                                                I. Venue



      Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017   Page 5 of 23
[6]   Briggs contends the trial court abused its discretion in denying her motion for

      change of venue. The Firm counters Briggs’ motion was untimely. We agree

      with the Firm.


[7]   Trial Rule 75 requires a party challenging venue to object upon the filing of a

      pleading or a motion to dismiss allowed by Trial Rule 12(B)(3). The timing of

      presenting defenses or objections in a responsive pleading or motion is

      prescribed by Trial Rule 6(C). Ind. Trial Rule 12(A). Trial Rule 6(C) provides,

      “A responsive pleading required under these rules, shall be served within

      twenty (20) days after service of the prior pleading. Unless the court specifies

      otherwise, a reply shall be served within twenty (20) days after entry of an order

      requiring it.” If a pleading is served by mail, service is deemed complete upon

      mailing, T.R. 5(B)(2),1 and three days are added to the prescribed twenty-day

      period, T.R. 6(E).


[8]   Here, the Firm filed its complaint and sent notice of the complaint by certified

      mail to Briggs on December 29, 2015. Having not yet filed a responsive

      pleading, Briggs moved for change of venue pursuant to Trial Rule 12(B)(3) on

      January 28, 2016, beyond the twenty-three-day deadline prescribed by the rules




      1
       Briggs contends the prescribed period to challenge venue by a responsive pleading or motion “does not
      begin to run before the defendant receives the complaint and summons.” Brief of the Appellant at 21. Briggs
      does not cite any authority in support of this contention and we conclude such a contention is at direct odds
      with Trial Rule 5(B)(2) and therefore without merit.

      Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017              Page 6 of 23
       above. We conclude, as the trial court did, Briggs’ motion was untimely, and

       therefore the trial court did not abuse its discretion in denying it.


                                     II. Summary Judgment
[9]    Briggs also appeals from the trial court’s denial of her motion for summary

       judgment and the trial’s entry of summary judgment in favor of the Firm.

       When reviewing a grant or denial of summary judgment, our standard is the

       same as it was for the trial court: we determine whether there is a genuine issue

       of material fact, and if not, whether the moving party is entitled to judgment as

       a matter of law. Ind. Trial Rule 56(C); City of Beech Grove v. Beloat, 50 N.E.3d

       135, 137 (Ind. 2016). All evidence must be construed in favor of the opposing

       party, and all doubts as to the existence of a material issue must be resolved

       against the moving party. Mahan v. Am. Standard Ins. Co., 862 N.E.2d 669, 675

       (Ind. Ct. App. 2007), trans. denied. The fact the parties have filed cross-motions

       for summary judgment does not alter our standard of review. Id. at 676.

       Instead, we consider each motion separately to determine whether the moving

       party is entitled to judgment as a matter of law. Id. “We will affirm a summary

       judgment ruling on any legal theory which is consistent with the designated

       evidence in the record.” Wickey v. Sparks, 642 N.E.2d 262, 265 (Ind. Ct. App.

       1994), trans. denied.


                                   A. Scope of Representation
[10]   Before we discuss the merits of the parties’ general contentions, it is necessary

       to first address what services rendered by the Firm fell within the parties’ fee

       Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017   Page 7 of 23
       agreement. Specifically, the issue is whether the services rendered following the

       death of Ms. Strange in October 2014 were governed by the fee agreement. The

       parties’ agreement provides in relevant part,


               1. SERVICES. . . . The scope of representation is limited to:
               guardian of Anna May [sic] Strange with these issues: 1.
               Restricted account in order, 2. Payments to Caregivers from rest.
               acct., 3. acct. for caregiver acct. and transfer to rest. acct., 4.
               annual acct. of trust and 5. AIF acct.


                       1.1 LIMITED REPRESENTATION. This Agreement is
                       limited to the legal services described above and does not
                       include nor does it engage me to represent you in any
                       matter not described above.


       App. of the Appellant, Vol. 2 at 14 (emphasis added).


[11]   Unless terms of a contract are ambiguous, they will be given their plain and

       ordinary meaning. Shorter v. Shorter, 851 N.E.2d 378, 383 (Ind. Ct. App. 2006).

       Unambiguous terms are deemed conclusive. Id. A document is not ambiguous

       merely because the parties disagree about a term’s meaning; rather, language is

       ambiguous if reasonable people could come to different conclusions as to its

       meaning. Univ. of S. Ind. Found. v. Baker, 843 N.E.2d 528, 532 (Ind. 2006).


[12]   Here, the language of the fee agreement unambiguously dictates the parties

       agreed the Firm would only render services in the underlying guardianship

       proceeding, specifically providing the Firm would assist Briggs with certain

       enumerated services. Moreover, the agreement provides the fee agreement was

       limited to those services only. There is no mention of the Firm continuing to

       Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017   Page 8 of 23
       assist Briggs once the guardianship was terminated following the death of Ms.

       Strange. We therefore conclude the Firm represented Briggs in the underlying

       guardianship matter until October 2014 and the services rendered up until that

       point were governed by the parties’ fee agreement. The services rendered

       subsequent to Ms. Strange’s death in October 2014 were not governed by the

       parties’ fee agreement. This distinction becomes relevant below.


                       B. Briggs’ Motion for Summary Judgment
[13]   Briggs contends the trial court erred as a matter of law in denying her motion

       for summary judgment, arguing the Firm’s claim for unpaid legal fees is barred

       by the doctrine of res judicata. We disagree.


[14]   Res judicata is typically separated into two components: claim preclusion and

       issue preclusion. Thrasher, Buschmann, & Voelkel, P.C. v. Adpoint Inc., 24 N.E.3d

       487, 494 (Ind. Ct. App. 2015). Briggs claims both components bar the Firm

       from litigating this claim. Issue preclusion, also known as collateral estoppel,

       “bars subsequent relitigation of the same fact or issue where that fact or issue

       was necessarily adjudicated in a former lawsuit and that same fact or issue is

       presented in a subsequent suit.” Id. Issue preclusion also applies if the second

       adjudication is on a different claim. Id. In order for the rule to apply, the party

       invoking issue preclusion must prove: 1) a final judgment on the merits, 2)

       identity of the issues, and 3) the party to be estopped from relitigating the issue

       was a party or the privy of a party in the prior action. Id. We have also noted

       two additional considerations are relevant in determining whether issue


       Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017   Page 9 of 23
       preclusion is appropriate: 1) whether the party to be estopped had a full and fair

       opportunity to litigate the issue, and 2) “whether it would be otherwise unfair

       under the circumstances to permit the use of collateral estoppel.” Id. (citation

       omitted).


[15]           Also, the doctrine of res judicata, also known as claim preclusion,
               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. The principle behind this doctrine, as
               well as the doctrine of collateral estoppel, is the prevention of
               repetitive litigation of the same dispute. 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. (citations omitted). Thus, both claim preclusion and issue preclusion

       contain similar elements. See id.


[16]   At the outset, we note any claim to fees accumulating after October 2014 are

       not barred by res judicata because the issue of these fees was clearly never

       litigated. These fees were generated subsequent to the Firm’s request for

       guardianship fees to be paid out of the guardianship estate. Further, and as our

       discussion below indicates, the Firm is not barred from seeking payment of

       these fees even if it had requested a portion of these fees be paid from Ms.

       Strange’s estate. Thus, we must only address whether res judicata bars the Firm

       Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017   Page 10 of 23
       from seeking payment of the $10,734.20 not awarded by the Davies Circuit

       Court out of Ms. Strange’s estate.


[17]   In Thrasher, Adpoint contracted with Thrasher, Buschmann, & Voelkel, P.C.

       (“TBV”), a law firm, to represent the company in selling its franchise to R.

       Myers & Associates. 24 N.E.3d at 490. The contract between Adpoint and

       TBV listed the hourly rate for various attorneys at the firm and provided TBV

       would bill for its services on an hourly basis. The contract also provided TBV

       reserved the right to charge a monthly late fee if Adpoint was delinquent. After

       Adpoint and R. Myers & Associates entered into a promissory note and asset

       purchase agreement, R. Myers & Associates breached. Litigation ensued and

       TBV continued to represent Adpoint. During this underlying litigation, TBV

       requested attorneys’ fees in the amount of $76,206.13 pursuant to the terms of

       the promissory note and asset purchase agreement. The trial court ultimately

       entered judgment in favor of Adpoint and against R. Myers & Associates in the

       amount of $86,595.43 plus interest, which included $50,804.08 in attorneys’

       fees. Thereafter, Adpoint paid TBV $39,653.60.


[18]   Months later, TBV filed its Complaint on Account, on Account Stated, and

       Breach of Contract against Adpoint, seeking $53,712.89 and alleging in part

       Adpoint still owed TBV attorneys’ fees from the underlying litigation and

       additional attorneys’ fees under the parties’ contract. Each party moved for

       summary judgment. In opposing TBV’s motion, Adpoint argued res judicata

       dictated it had only owed TBV a total of $50,804.08, of which it had already

       paid TBV $39,653.60. Thus, Adpoint contended it only owed TBV $11,150.48,

       Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017   Page 11 of 23
       the difference between the trial court’s attorneys’ fee award and the amount

       Adpoint had already paid. Following a hearing, the trial court entered

       judgment in favor of TBV and against Adpoint in the amount of $11,150.48.

       TBV appealed.


[19]   On appeal, both parties contested the application of issue preclusion and claim

       preclusion to TBV’s claims. We first summarized the elements of each rule,

       and relevant here, noted the similarities between issue preclusion’s identity of

       the issues requirement and claim preclusion’s requirement that the issue was or

       could have been determined in the prior action. See id. at 494 (“[Issue

       preclusion] requires that the issue being raised has been identified in the

       previous litigation; similarly, for a subsequent claim to be barred by the doctrine

       of res judicata [or claim preclusion], it must be shown that the matter now at

       issue was, or could have been, determined in the prior action.”). We therefore

       examined whether the issue of the sum owed by Adpoint to TBV pursuant to

       the contract satisfied either of these elements.


[20]   TBV argued the amount owed by Adpoint under the contract was never

       litigated and therefore neither issue preclusion nor claim preclusion barred its

       action. Adpoint countered the issue was previously litigated, evidenced by the

       trial court determining the amount of reasonable attorneys’ fees during the

       underlying litigation. Upon review of the trial court’s order in the underlying

       litigation, we determined the trial court merely ordered


               R. Myers reimburse Adpoint for certain reasonable attorney fees
               incurred by Adpoint during the Underlying Litigation pursuant

       Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017   Page 12 of 23
               to the terms of the Promissory Note and Asset Purchase
               Agreement. It did not, however, consider the total amount
               Adpoint owed to TBV for services rendered under the contract
               between Adpoint and TBV.”


       Id. at 495. We therefore concluded neither issue preclusion nor claim

       preclusion barred TBV from seeking additional payment under the contract.


[21]   Similar to Thrasher, Briggs contracted with the Firm to provide services in

       guardianship proceedings. As the guardianship proceedings came to a close,

       the Firm petitioned the Davies Circuit Court to order attorneys’ fees be paid out

       of the guardianship estate. A review of the Davies Circuit Court order that the

       estate reimburse the Firm with reasonable attorneys’ fees indicates the court

       was never provided the contract between Briggs and the Firm and therefore the

       court could not have possibly considered the total amount Briggs owed the

       Firm for services rendered under the contract. We therefore conclude—

       consistent with Thrasher—neither issue preclusion nor claim preclusion bar the

       Firm from litigating its claim for unpaid legal fees. The trial court did not err in

       denying Briggs’ motion for summary judgment.


                   C. The Firm’s Motion for Summary Judgment
                                             1. Unpaid legal fees

                         a. Services Rendered Pursuant to the Fee Agreement

[22]   Between March 2013 and October 2014, the Firm represented Briggs pursuant

       to a fee agreement regarding the guardianship of Ms. Strange. In October 2014,

       the Firm requested the Davies Circuit Court award it $33,908.20 out of Ms.

       Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017   Page 13 of 23
       Strange’s estate, of which the court deemed $10,734.20 unreasonable. In the

       present case, the Firm sought in part from Briggs, and the trial court awarded in

       part, the additional $10,734.20. The only argument raised by Briggs

       challenging this portion of the award is that there is a genuine issue of material

       fact as to its reasonableness. Specifically, she cites to the fact Davies Circuit

       Court already deemed this amount unreasonable and therefore it would be

       contradictory for a trial court to later deem this amount to be reasonable in a

       subsequent proceeding. We emphasize, however, the Davies Circuit Court

       merely determined the reasonableness of the requested attorneys’ fees as to the

       underlying guardianship matter, not the parties’ fee agreement. In fact, the

       Davies Circuit Court was never even provided the parties’ fee agreement.

       Therefore, the fact the Davies Circuit Court did not order this amount be paid

       out of the estate does not create a genuine issue of material fact as to the

       reasonableness of the fees charged. Briggs’ argument fails and we conclude the

       trial court did not err in awarding the Firm $10,734.20 pursuant to the fee

       agreement.


                    b. Services Rendered Outside the Scope of the Fee Agreement

[23]   Between October 2014 and December 2015, the Firm represented Briggs in the

       closing of Ms. Strange’s estate and the trial court awarded the Firm $25,454.21

       for services rendered during this time. No express fee agreement governed

       these services and therefore some other legal theory must apply in order for the

       Firm to be entitled to these fees. The parties first dispute whether the law of

       accounts stated, as argued by the Firm in its motion for summary judgment,

       Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017   Page 14 of 23
       entitles the Firm to payment for services rendered during this period.2 See

       B.E.I., Inc. v. Newcomer Lumber & Supply Co., Inc., 745 N.E.2d 233, 236-37 (Ind.

       Ct. App. 2001) (describing the law of account stated). However, because we

       previously concluded the Firm did not render these services pursuant to a fee

       agreement and the law provides we may affirm the trial court on any legal

       theory supported by the designated evidence, see Wickey, 642 N.E.2d at 265, we

       conclude the Firm is entitled to reasonable fees for services rendered during the

       closing of Ms. Strange’s estate under a theory of quantum meruit.3


[24]   In situations where there is no express agreement between parties, a plaintiff

       may recover under a theory of quantum meruit, also known as unjust

       enrichment, contract implied-in-law, quasi-contract, or constructive contract.

       Kelly v. Levandoski, 825 N.E.2d 850, 860 (Ind. Ct. App. 2005), trans. denied.


                These theories are legal fictions invented by the common law
                courts in order to permit recovery where in fact there is no true
                contract, but where, to avoid unjust enrichment, the courts
                permit recovery of the value of the services rendered just as if
                there had been a true contract. . . .

                The purpose of these equitable theories is to force those who




       2
        The parties dedicate much of their arguments to addressing whether an account stated arose between the
       parties. In arguing one did arise, the Firm relies heavily on paragraph nine of the parties’ fee agreement,
       which provides Briggs with thirty days to object to a billing statement. Briggs counters such a provision is
       void as against public policy. As is apparent throughout our decision, the provision is irrelevant to the task at
       hand. However, we caution such a provision could potentially, under different facts, be troublesome.
       3
        The Firm raised this argument as a theory supporting the trial court’s judgment. See Brief of Appellee at 46.
       Briggs did not address this claim in either her Brief of the Appellant or Reply Brief of the Appellant.

       Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017                Page 15 of 23
               have been unjustly enriched at the expense of another party to
               make restitution to that other party.


               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. The plaintiff must also
               demonstrate that to allow the defendant to retain the benefit
               without paying for it would be unjust and that the plaintiff
               expected payment.


       Id. at 860-61 (citations omitted).


[25]   Here, the designated evidence establishes Briggs sought representation in

       guardianship matters regarding Ms. Strange and contracted with the Firm. The

       agreement did not, however, cover any services provided by the Firm

       subsequent to Ms. Strange’s death and the parties did not expressly agree the

       Firm would continue rendering services on behalf of Briggs. Yet, between

       October 2014 and December 2015, the Firm rendered services, billed Briggs

       accordingly, and Briggs did not question any billings until December 2015.

       Therefore, Briggs, at the very least, implicitly requested the Firm render its

       services for her benefit and the Firm expected payment in return. It would be

       unjust for Briggs to receive a benefit from the Firm’s services without the Firm

       receiving payment for services rendered. The Firm is therefore entitled to

       reasonable attorneys’ fees for services rendered during October 2014 and

       December 2015.


[26]   Under a theory of quantum meruit, a party may be able to recover the value for

       services rendered just as if a true contract existed. Mueller v. Karns, 873 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017   Page 16 of 23
       652, 659 (Ind. Ct. App. 2007). And regardless of whether attorneys’ fees are

       awarded pursuant to a contract, the fees must be reasonable. Cavallo v. Allied

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

       Although not entirely clear from her brief, it appears Briggs argues there is a

       genuine issue of material fact as to the reasonableness of these fees because the

       Firm only designated evidence of its hourly rate and the number of hours it

       dedicated to Briggs’ cause. Stated differently, Briggs believes more evidence is

       required to prove the reasonable value of the Firm’s services.


[27]   Determining the value of services rendered is ultimately a question of fact for

       the trial court. Nunn Law Office v. Rosenthal, 905 N.E.2d 513, 520 (Ind. Ct. App.

       2009). A trial court may take judicial notice of the reasonableness of attorneys’

       fees in certain routine actions in which modest fees are sought. Shelby’s

       Landing-II, Inc. v. PNC Multifamily Capital Institutional Fund XXVI Ltd. P’ship, 65

       N.E.3d 1103, 1112 (Ind. Ct. App. 2016). “However, where the amount of the

       fee is not inconsequential, there must be objective evidence of the nature of the

       legal services and the reasonableness of the fee.” Id. A common starting point

       for trial courts is to look to the hours worked and the rate charged, but a trial

       court is not limited to just these factors. Id. For example, Indiana Professional

       Conduct Rule 1.5(a) provides several non-exclusive factors a trial court may

       consider in determining the reasonableness of a fee, including the time and

       labor required; the difficulty of questions involved; the skill necessary to

       perform the service; the fee customarily charged for similar legal services in the

       local community, and the experience, reputation, and ability of the lawyer or


       Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017   Page 17 of 23
       lawyers performing the services. See id. at 1113. In addition, the trial court

       may take into consideration its personal expertise in determining reasonable

       attorneys’ fees. Id. at 1112-13.


[28]   The record indicates the Firm submitted evidence of its hourly rate and the

       number of hours dedicated to Briggs’ cause during this period. In addition, the

       Firm designated as evidence all billing statements it provided Briggs, each of

       which contained specific details of the legal services performed during that

       period. These designations provided the trial court with evidence regarding the

       time and labor involved, the novelty and difficulty of the questions involved,

       and the nature and length of the Firm and Briggs’ relationship. Further, the

       trial court—relying on this evidence and its personal expertise—had sufficient

       information to determine the skill necessary to perform the services properly,

       the fee customarily charged for similar legal services in the local community,

       and the Firm’s experience, reputation, and ability. And as a final point, we

       note Briggs did not designate any evidence claiming these fees were

       unreasonable. We therefore conclude the trial court did not err in awarding the

       Firm $25,454.21 for services rendered pursuant to the parties’ quasi-contract.


                                             2. Collection Costs

[29]   Briggs also challenges the trial court’s decision to award the Firm collection

       costs. In its motion for summary judgment, the Firm designated evidence of

       the costs associated with pursuing a judgment against Briggs and requested an

       award totaling approximately $8,200.00. The trial court only awarded


       Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017   Page 18 of 23
       $7,675.91, which appears to indicate the trial court determined some of the

       costs requested by the Firm were unreasonable.


[30]   The parties’ fee agreement provides,


               You shall also pay to me an amount equal to the reasonable cost
               of collection incurred in collecting the late payments, recognizing
               that I will collect the late payment and that I am entitled to
               charge as collection costs my time and expenses expended in
               collecting the payment as normally charged to you on an hourly
               basis.


       App. of the Appellant, Vol. 2 at 15. As the fee agreement demonstrates, the

       parties agreed the Firm was entitled to costs associated with pursuing payment

       for services rendered under the fee agreement. Therefore, the Firm is entitled to

       the cost of collecting the money owed by Briggs under the fee agreement.


[31]   However, the Firm also accumulated costs in pursuing the money owed under

       the parties’ quasi-contract, where there was clearly no agreement providing

       Briggs would be liable for the Firm’s collection costs. In addition, the Firm sets

       forth no other legal theory under which it could claim it is entitled to costs

       associated with pursuing an award under the parties’ quasi-contract. We

       therefore conclude the Firm is not entitled to collect the costs incurred in

       pursuing the portion of the award stemming from the parties’ quasi-contract.

       Because it is apparent the trial court awarded most of the Firm’s request for

       collection costs, we are left to assume the award improperly includes costs

       associated with the Firm’s pursuit of payment for services rendered under the

       parties’ quasi-contract. We therefore reverse this portion of the trial court’s
       Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017   Page 19 of 23
       order. On remand, we instruct the trial court to amend the award for collection

       costs to include only the portion of collection costs incurred in pursuing

       payments owed by Briggs under the fee agreement.4


                                             3. Prejudgment Interest

[32]   Briggs also challenges the trial court’s decision to award the Firm prejudgment

       interest in the amount of $5,602.86. The parties’ fee agreement provides, “Late

       payments shall bear interest at the rate of 12% per annum from the first day

       payment is due.” App. of the Appellant, Vol. 2 at 15. However, the Firm

       acknowledges it is only charging prejudgment interest in the amount of 8% per

       annum. Brief of Appellee at 47. Although not entirely addressed by the parties,

       there appears to be a genuine issue of material fact as to the amount of

       prejudgment interest to be awarded by the trial court. First, we note the Firm is

       very much entitled to prejudgment interest on the $10,734.20 owed by Briggs

       under the fee agreement at a rate of 8% per annum. It appears the Firm

       believes interest began accruing on this amount immediately following this

       amount’s inclusion in the October 2014 billing statement. However, the fee

       agreement clearly provides interest was not due to accrue until thirty days after




       4
         Although we reverse and remand on this issue, we further note our concern as to the reasonableness of the
       collection costs as requested by the Firm and awarded by the trial court. The designated evidence indicates
       the Firm requested costs related to a motion for default judgment the Firm never filed. Such costs do not
       appear to be reasonable. Granted, the trial court may have already taken this into consideration in
       determining the amount of collection costs owed to the Firm, but in light of the fact the trial court did not
       enter any findings and we are nonetheless reversing the award and remanding to the trial court, we opt to
       take the safe route and inform the trial court of our concern as it will now be charged with amending the
       award for collection costs.

       Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017              Page 20 of 23
       payment was due and therefore interest could not have begun accruing until

       after October 2014.


[33]   Second, the affidavit of attorney Kolb provides, “In the Guardianship case, Ms.

       Briggs knew I was not going to be paid for my legal work until after the Court

       in the Guardianship case decided how much of my fee should be paid out of the

       Guardianship Estate.” App. of the Appellant, Vol. 3 at 83 (Second Affidavit of

       Jeffrey B. Kolb).5 Regardless of what attorney Kolb thought Briggs’ knew, we

       can at the very least infer from this statement that attorney Kolb informed

       Briggs he would not be expecting payments under the fee agreement until after

       he was paid out of the guardianship estate, which did not occur until July 2015.

       This, of course, is at odds with the terms of the parties’ fee agreement and it

       appears unjust the Firm would receive the added benefit of interest accruing on

       the amount owed when it knew all along it would not expect payments from

       Briggs until after the Davies Circuit Court addressed the payment of attorneys’

       fees from the guardianship estate. We therefore conclude there is a genuine

       issue of material fact as to when the interest began accruing on the amount

       owed under the fee agreement.




       5
         In its motion for summary judgment, the Firm designated as evidence the affidavit of attorney Kolb. Briggs
       then moved to strike portions of the affidavit, claiming several portions contained inadmissible statements.
       The trial court never ruled on Briggs’ motion, and now on appeal, she asserts the trial court erred in not
       granting her motion. We agree with Briggs there are some portions of Kolb’s affidavit that are inadmissible,
       evidenced by a portion of the quote above which includes Kolb’s statement regarding Briggs’ knowledge. We
       further note most of Kolb’s affidavit is irrelevant to the issues before us. In any event, it is necessary to
       emphasize that at no point in the process of reaching this decision did we rely on any portion of Kolb’s
       affidavit apart from the portion quoted above.

       Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017            Page 21 of 23
[34]   Third, we note the Firm claims the prejudgment interest on the $10,734.20

       owed by Briggs is approximately $1,500 based on its belief interest began

       accruing at 8% per annum sometime around October 2014. Even if we were to

       accept this as true, this amount dictates the trial court must have awarded

       approximately $4,100.00 in prejudgment interest on the $25,454.21 owed by

       Briggs under the quasi-contract. We certainly acknowledge “an award of

       prejudgment interest may be proper when the underlying judgment rests on a

       theory of quantum meruit rather than the terms of a contract.” Warfield v. Dorey,

       55 N.E.3d 887, 895 (Ind. Ct. App. 2016). However, even assuming the Firm

       had rendered $25,454.21 worth of services under the quasi-contract by October

       17, 2014, which it clearly did not,6 the prejudgment interest would only amount

       to approximately $3,800.00—if done at 8% per annum—by the time the trial

       court entered judgment in favor of the Firm. We therefore conclude the award

       of prejudgment interest is flawed and reverse this portion of the trial court’s

       order. On remand, we instruct the trial court to calculate and award

       prejudgment interest in favor of the Firm after taking into consideration our

       discussion above.



                                                    Conclusion
[35]   We conclude the trial court did not abuse its discretion in denying Briggs’

       motion for change of venue, in denying Briggs’ motion for summary judgment,




       6
           To be clear, the Firm did not accumulate $25,254.21 worth of fees until late 2015.


       Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017      Page 22 of 23
       or in granting the Firm’s motion for summary judgment to the extent the Firm

       is entitled to unpaid legal fees in the amount of $36,188.41. However, we

       further conclude the Firm is not entitled to a portion of the collection costs

       awarded by the trial court as a matter of law and there is a genuine issue of

       material fact as to the amount of prejudgment interest to be awarded.

       Accordingly, we affirm in part, reverse in part, and remand.


[36]   Affirmed in part, reversed in part, and remanded.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 42A01-1610-CC-2235 | May 24, 2017   Page 23 of 23
