                                                                        Apr 20 2015, 9:53 am




      APPELLANT, PRO SE                                           ATTORNEYS FOR APPELLEE
      Stephen F. Smith                                            William G. Murphey
      South Bend, Indiana                                         Kopka Pinkus Dolin PC
                                                                  Crown Point, Indiana
                                                                  A. Robert Masters
                                                                  Nemeth Feeney Masters & Campiti PC
                                                                  South Bend, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Stephen F. Smith,                                           April 20, 2015

      Appellant-Defendant/Counter-Plaintiff,                      Court of Appeals Cause No.
                                                                  71A03-1405-SC-169
              v.                                                  Appeal from the St. Joseph Superior
                                                                  Court

      Foegley Landscape, Inc.,                                    Lower Court Cause No.
                                                                  71D01-1307-SC-5420
      Appellee-Plaintiff/Counter-Defendant.
                                                                  The Honorable Michael P.
                                                                  Scopelitis, Judge




      Pyle, Judge.


                                         Statement of the Case
[1]   Appellant-Defendant/Counter-Plaintiff, Stephen F. Smith (“Smith”), appeals

      the small claims court’s judgments in favor of Appellee-Plaintiff/Counter-

      Defendant, Foegley Landscape, Inc. (“Foegley Landscape”), on its breach of

      Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015                  Page 1 of 21
contract claim and on Smith’s tort and promissory estoppel counterclaim.1 He

also appeals the small claims court’s award of attorney fees to Foegley

Landscape. Foegley Landscape brought a claim against Smith in small claims

court alleging that he had breached a contract for landscaping services by failing

to pay the money he owed on the contract. Smith filed an answer and

counterclaim arguing that Foegley Landscape, instead, had breached the

contract because it had damaged the drainage system on Smith’s house in the

process of completing the landscaping project. In his counterclaim, Smith

requested damages for the broken drainage system. After a bench trial, the

small claims court found in favor of Foegley Landscape on both the claim and

counterclaim, entered judgment for the amount owed under the contract, and

also awarded Foegley Landscape attorney fees and costs.


On appeal, Smith argues that the small claims court erred in finding in favor of

Foegley Landscape on both the claim and counterclaim because the company

did not present any evidence contradicting his argument that it had damaged

his drainage system. Accordingly, Smith asserts, the company breached its

contractual promise to fulfill the contract in a “workmanlike manner” and was

liable for damages for the drainage system. Alternately, Smith argues that the

small claims court abused its discretion in awarding Foegley Landscape

attorney fees because its insurer actually paid for one of the attorneys and




1
 In his counterclaim, Smith also argued that Foegley Landscape was liable under theories of fraud and
breach of contract, but he does not raise those arguments on appeal.

Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015                       Page 2 of 21
      because there was insufficient evidence to determine the reasonableness of the

      fees. We conclude that, contrary to Smith’s arguments, Foegley Landscape

      presented evidence that it did not damage Smith’s drainage system, and we

      therefore affirm the small claims court’s judgments on the claim and

      counterclaim. However, we also conclude that there was not sufficient

      evidence for the small claims court to determine the reasonableness of Foegley

      Landscape’s attorney fees. Accordingly, we reverse the small claims court’s

      award of attorney fees and remand to the court so it can hold a hearing and

      determine reasonable attorney fees.


      We affirm in part, reverse in part, and remand.


                                                       Issues
[2]   1. Whether the small claims court erred when it entered judgment in favor of

      Foegley Landscape on its breach of contract claim and on Smith’s tort and

      promissory estoppel counterclaims.


      2. Whether the small claims court abused its discretion in awarding Foegley

      Landscape attorney fees.




      Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015   Page 3 of 21
                                                        Facts2
[3]   In early June 2012, Smith and his wife (“Mrs. Smith”) (collectively, “the

      Smiths”) contacted Foegley Landscape about landscaping their yard. They had

      developed a good opinion of Foegley Landscape because they had seen the

      company complete work on their neighbors’ yard and thought the company had

      done a “beautiful job.” (Tr. 72).


[4]   Shortly thereafter, Aaron Laskowski (“Laskowski”), who works in sales and

      management at Foegley Landscape, met with Smith to discuss the potential

      landscaping project. He and Smith walked around Smith’s yard together so

      that he could get an idea of the landscaping changes Smith wanted to make and

      could formulate a landscape plan.


[5]   Subsequently, on June 25, Laskowski returned to the Smith house with a

      completed landscape proposal. It provided that, for $5,966, Foegley Landscape

      would remove the plants, debris, and weeds along the front of the foundation of

      the Smiths’ house; level out a “hump” that the previous owner had left in the




      2
        Smith’s Statement of Facts includes argument, which is inappropriate in that part of an appellate brief.
      Elliot v. Sterling Mgmt. Ltd., Inc., 744 N.E.2d 560, 562, n.1 (Ind. Ct. App. 2001). Although Smith is pro se in
      this proceeding, he is also an attorney and a professor at the University of Notre Dame, and we hold him to
      the same standards as other attorneys. (Tr. 65, 66, 90). Accordingly, we remind Smith that a Statement of
      the Facts should be a concise narrative of the facts stated in a light most favorable to the judgment and should
      not be argumentative. Elliot, 744 N.E.2d at 562, n1. See Ind. Appellate Rule 46. Smith also attempts to
      inappropriately discredit the small claims court by writing, (1) “[s]adly, the trial judge was not interested in
      doing justice”, and (2) “In his zeal to help a landscaping company collect a contract price it clearly had not
      earned—and that even counsel for appellee feared it might be held not to have earned—the trial judge
      committed several legal errors.” (Smith’s Br. 1, 2). We refer Smith to Indiana Appellate Rule 46 for the
      proper format and placement of arguments in an appellate brief.

      Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015                           Page 4 of 21
      planting bed; edge the yard; install bark mulch; and install several plants. (Tr.

      17). The Smiths would have to pay fifty percent of the total price upon signing

      the proposal and the rest upon completion of the project. They would also be

      liable for “[a]ny cost including reasonable attorney fees, incurred in the

      collection of this contract[,]” and a “2% service charge per month – 24%

      Annual percentage rate on all accounts past 30 days.” (Foegley Landscape’s

      Ex. 1). The Smiths agreed to these terms and endorsed the contract. They paid

      the down payment of $3,000, fifty percent of the project price, and a crew from

      Foegley Landscape began the landscaping project two to three weeks later.


[6]   Around the end of July, Foegley Landscape completed the first stage of the

      work, which involved removing the plants, debris, and “hump” in the Smiths’

      yard. (Tr. 17). By the end of August, the crew members had installed the

      mulch and plants and completed the landscaping. However, before the crew

      left the property, Laskowski conducted a final inspection to confirm that they

      had completed all of the landscaping required under the contract.


[7]   During the inspection, Laskowski noticed that only one of the downspouts on

      the house was connected to a drain tile, and the tile looked “like it was installed

      incorrectly.” (Tr. 22). A drain tile is a pipe that attaches to a gutter’s

      downspout and directs water away from a house. The other end of the tile is

      usually buried underground and prevents water from collecting around the

      house and causing water damage. The drain tile that Laskowski thought was

      installed incorrectly ran parallel to, rather than away from, Smith’s house.

      However, because the Smiths had not contracted with Foegley Landscape to fix

      Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015     Page 5 of 21
       their drainage system, Laskowski determined that the company had fulfilled its

       obligations under the contract.


[8]    As a result, on August 31, 2012, Foegley Landscape sent Smith an invoice for

       $2,996, which was the remaining amount the Smiths still owed under the

       contract. The invoice included a note recommending that the Smiths take the

       next step of adding underground drain tiles to all of the downspouts on the

       house.


[9]    Over the following months, the Smiths failed to pay the amount they owed. On

       December 6, 2012, the President and Owner of Foegley Landscape, John

       Foegley (“Foegley”), sent Smith a letter telling him that he owed $3,242.97 as a

       result of service charges for non-payment and requesting that Smith call him if

       he wished to discuss the matter. Smith did not call or otherwise respond to

       Foegley’s letter.


[10]   During that same period, the company also tried to contact Smith through his

       work e-mail address and by mailing him letters. Laskowski attempted to

       contact Smith by telephone several times and left a voicemail each time. He

       only heard back from Smith once in April 2013 when Smith called saying that

       something in the landscaping project was still incomplete, but “[he] had to get

       with [his] wife to find out what that was.” (Tr. 42). He told Laskowski that he

       would get back with him, but he never did.


[11]   Sometime during the spring of 2013, Foegley asked the company’s Vice

       President, Brian Hominiuk (“Hominiuk”), to visit Smith’s house and find out if

       Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015   Page 6 of 21
       there was a reason that Smith had not paid.3 When Hominiuk did so, Smith

       answered the door and told him that “he [had] to talk to [his] wife but [he]

       believe[d] there were some downspouts that were taken[.]” (Tr. 115).

       Hominiuk told Smith that the house’s drainage was not a part of the contract,

       but he agreed to bring a crew back out to work on the drain system to “make

       [Smith] happy.” (Tr. 118). He specified, though, that the crew members would

       not do any further work until he received payment for the work that they had

       already completed. Smith agreed, and the two set an appointment for

       Hominiuk to return with a crew.


[12]   Two weeks later, Hominiuk returned to the Smith house on the day they had

       designated to meet. He did not have a crew with him because he intended to

       meet with Smith to receive payment and set up for the two crew members, who

       were delayed. When he arrived, Hominiuk knocked on Smith’s door, but

       Smith did not answer. Smith was home but did not answer because he did not

       see a crew with Hominiuk and thought he was just trying to collect payment.

       However, when Smith did not answer the door, Hominiuk told the crew

       members not to come to the house as they had planned. After lunch, he tried to

       see if Smith was home, but, again, there was no answer at the door.


[13]   In May or early June of 2013, Foegley sent Smith a letter reiterating that

       Foegley Landscape had completed the work the contract had required, that



       3
         Hominiuk testified that he thought this occurred in the summer of 2013, but it is apparent from the record
       that it occurred in late spring 2013.

       Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015                          Page 7 of 21
       Smith had not responded to the company’s attempts to contact him, and that

       Smith had failed to meet with Hominiuk to pay as they had agreed. Foegley

       wrote that the balance on the account had reached $3,580.51 with service

       charges and told Smith that if Foegley Landscape did not receive payment

       before June 7, 2013, it would turn the matter over to the company’s attorneys

       for collection. He sent the letter by certified mail, but the post office sent it back

       with writing on the envelope stating “return to sender, moved, left[] no

       address.” (Tr. 91).


[14]   On July 9, 2013, Foegley Landscape filed a breach of contract claim against

       Smith in small claims court, requesting “up to $6,000[,]” including $3,580.51

       for the unpaid contract balance and service charges, additional amounts for

       accruing service charges and interest, reasonable attorney fees, and court costs.

       (App. 10). On August 8, 2013, Smith filed an answer and counterclaim in

       which he denied the charges against him and claimed that Foegley Landscape

       had destroyed his water drainage system and had not replaced it. He argued

       that the company was liable to him under legal theories of breach of contract,

       promissory estoppel, fraud, and tort, and he argued for compensatory damages

       in the amount of his $3,000 deposit, plus the amount necessary to repair the

       drainage system.


[15]   On November 12, 2013, Foegley Landscape filed two affidavits with the trial

       court. In the affidavits, two of the company’s employees stated that they

       performed the landscaping work on Smith’s yard and had not removed or



       Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015    Page 8 of 21
       damaged any drain tiles on the house. Although the company filed these

       affidavits with the court, it did not attempt to admit either of them at trial.


[16]   The next day, November 13, 2013, the small claims court held a bench trial on

       the claim and counterclaim. At trial, Laskowski and Foegley detailed the

       attempts they had made to contact Smith about payment. 4 With respect to the

       drain tiles, Laskowski testified that he “was in daily communication with the

       crews that were [at the Smith house] and they said they never ran into any

       tiles.” (Tr. 23). He explained that drain tiles are “extremely” difficult to

       remove because when they have been in the ground for a while, they have a lot

       of debris in them, and tree and shrub roots anchor them into the ground. (Tr.

       37). Due to this difficulty, he said that Foegley Landscape would typically cap

       a drain tile off and leave it underground before it would remove one.


[17]   Smith and Mrs. Smith also testified at the trial. Mrs. Smith said that one day

       when the crew members were working on the landscaping, she walked through

       the yard and saw one of the drain tiles “ripped off” and “off to the side.” (Tr.

       78). She claimed that one of the workers saw her reaction to the sight and said

       “don’t worry, Mrs. Smith[.] [A]nything we take out we will replace[.]” (Tr.

       78). Then, according to Mrs. Smith, the workers left without repairing the

       drain tiles. She said they removed all of the tiles, except for one, which was

       positioned parallel to the house and did not work properly. On cross-



       4
         Laskowski testified that by the date of trial, the total amount Smith owed on the contract was $3,875.68 due
       to continued accrual of interest after Foegley Landscape filed its complaint.

       Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015                          Page 9 of 21
       examination, however, Mrs. Smith changed her story slightly and stated that

       the drain tile that she claimed had been “ripped off” and “off to the side” had

       actually still been in the ground when she saw it, only exposed. (Tr. 78).


[18]   In regards to the Smiths’ failure to pay Foegley Landscape’s invoice, the Smiths

       both testified that they believed the work was incomplete—and therefore their

       payment was not due—because Foegley Landscape had not replaced the drain

       tiles. Mrs. Smith said that when the crew members left the Smiths’ house for

       the last time, she kept expecting them to return to repair the drainage system.


[19]   Finally, in regard to Foegley Landscape’s attempts to contact the Smiths, Mrs.

       Smith denied that either she or Smith had received Foegley’s May or June 2013

       letter that the post office had returned with the writing “return to sender,

       moved, left[] no address.” (Tr. 91). Smith stated that he did not get the letters

       from Foegley Landscape because he did not get the mail very often.


[20]   At the conclusion of the trial, Foegley Landscape introduced fee affidavits from

       its two attorneys, A. Robert Masters (“Attorney Masters”) and William G.

       Murphey (“Attorney Murphey”). Attorney Masters, the attorney-of-record,

       averred that his firm had billed Foegley Landscape $500 for its preparation of

       the complaint and representation of Foegley Landscape in court, as well as $81

       for the filing fee and $13 for the sheriff’s filing fee. Attorney Murphey averred

       that his fees totaled $4,045.90, although he did not include an hourly rate or

       any other explanation of his fee. Attorney Masters explained to the court that

       there were two affidavits because he had been retained to prepare the arguments


       Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015   Page 10 of 21
       related to the complaint, and Attorney Murphey had been retained when Smith

       filed his counterclaim. Attorney Masters implied, but did not explicitly state,

       that Foegley Landscape’s insurer had retained Attorney Murphey to help with

       Foegley Landscape’s defense.


[21]   The small claims court took the matter under advisement to allow Smith time

       to submit pictures he had taken of the house’s downspouts.5 Smith filed the

       pictures, and on January 9, 2014, the small claims court entered judgment of

       $5,410.55 in favor of Foegley Landscape on its complaint. This amount

       included the principal amount of the claim, interest through the date of

       judgment, and “reasonable” attorney fees of $1,500. (App. 5). In addition, the

       small claims court awarded Foegley Landscape costs of the action in the

       amount of $94 and entered judgment in favor of Foegley Landscape on Smith’s

       counterclaim.


[22]   On February 7, 2014, Smith filed a motion to correct error. Although his

       motion is not a part of the record, it is apparent that he argued that the small

       claims court’s award of attorney fees was excessive because the contract

       allowed Foegley to recover only “reasonable attorney fees incurred in the

       collection of this contract,” rather than fees incurred defending against a

       counterclaim. (App. 7). The small claims court held a hearing on the motion

       on April 9, 2014, and denied it on April 22, 2014, holding that Smith’s



       5
        Smith had brought his camera to court with the pictures on it, but he had not printed them off in order to
       admit as exhibits.

       Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015                        Page 11 of 21
       interpretation of the contract language was too narrow. The small claims court

       also found that its $1,500 award of attorney fees was reasonable “in light of the

       time and effort expended to pursue [Foegley Landscape’s] claim through the

       court system” and in light of “the amount of the remaining balance owed by

       Smith on the contract.” (App. 7). Smith now appeals.


                                                     Decision
[23]   On appeal, Smith challenges the small claims court’s judgments in favor of

       Foegley Landscape on both the claim and counterclaim. With respect to the

       claim, he argues that Foegley Landscape failed to fulfill its contractual

       requirements in a “workmanlike manner,” as required by the contract, because

       the company broke his drainage system and failed to replace it. Accordingly,

       he argues that Foegley Landscape breached the contract, and he was not liable

       for payment. With regards to the counterclaim, Smith asserts that the trial

       court erred in entering judgment against him because Foegley Landscape

       should have been liable to him for removing the drainage system under a theory

       of either tort or promissory estoppel. Finally, Smith argues that even if the trial

       court did not err in entering judgment under either the claim or counterclaim,

       the attorney fees it awarded Foegley Landscape were unreasonable. Because

       Smith’s arguments concerning the claim and counterclaim are dependent on the




       Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015    Page 12 of 21
       evidence regarding the drainage system, we will address that issue first and then

       turn to the issue of attorney fees.6


       1. Judgments on the Claim and Counterclaim


[24]   First, Smith asserts that the trial court erred in deciding in favor of Foegley

       Landscape on both the claim and counterclaim because there was no evidence

       in the record disputing his claim that the crew members damaged his drainage

       system. He argues that the only evidence Foegley Landscape presented on the

       issue were its employees’ two affidavits that it filed with the small claims court

       but did not seek to admit at trial. As the affidavits were not admitted at trial, he

       contends that the only evidence presented at trial was that the crew damaged

       the system. We disagree.


[25]   First, we must note that, as we expressed in Herren v. Dishman, 1 N.E.3d 697,

       702 (Ind. Ct. App. 2013),

                Judgments in small claims actions are subject to review as
                prescribed by relevant Indiana rules and statutes. Indiana has
                specific rules for small claims cases, but the Indiana Rules of
                Trial Procedure will generally apply unless the particular rule in
                question is inconsistent with something in the small claims rules.
                In accordance with Trial Rule 52(A), the findings or judgments
                rendered in a bench trial must be upheld unless clearly erroneous.
                Deference to the small claims court is essential as the trials are



       6
         Foegley Landscape argues that Smith waived his claims by failing to file a timely appeal. We disagree as
       the small claims court denied his motion to correct error on April 22, 2014, and he filed his notice of appeal
       with this Court on May 21, 2014. See App. R. 9 (stating that a party has thirty days after a trial court rules on
       a motion to correct error to file a notice of appeal with the Clerk of the Court of Appeals).

       Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015                           Page 13 of 21
               designed to speedily dispense justice by applying substantive law
               between the parties in an informal setting. This court considers
               the evidence and related inferences in a light most favorable to
               the judgment, presuming that the small claims court applied the
               law correctly and giving due regard to the trial court’s
               opportunity to judge the credibility of the witnesses. However,
               this deferential standard does not apply to the substantive rules of
               law, which are reviewed de novo just as they are in appeals from
               a court of general jurisdiction. The burden of proof in a small
               claims civil suit is the same as it would be had the case been filed
               in a general trial court.


       (internal citations and quotations omitted).


[26]   Here, the small claims court did not make findings about whether Foegley

       Landscape damaged Smith’s drainage system. When the trial court makes no

       findings of fact, we presume the judgment is based on findings supported by the

       evidence. Rueth v. Quinn, 659 N.E.2d 684, 687 (Ind. Ct. App. 1996), trans.

       denied. We must affirm the trial court’s judgment if it can be sustained on any

       legal theory supported by the evidence. Id. When making this determination,

       we do not reweigh the evidence or assess the credibility of witnesses. Id.

       Instead, we consider only the evidence most favorable to the judgment, together

       with all reasonable inferences drawn therefrom. Id.


[27]   While we acknowledge that Foegley Landscape did not attempt to admit its

       employees’ affidavits at trial, there was other evidence in the record disputing

       Smith’s claim that Foegley Landscape’s crew had damaged the Smiths’

       drainage system. Laskowski testified that he “was in daily communication with

       the crews that were [at the Smith house] and [that] they said they never ran into

       Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015   Page 14 of 21
       any tiles.” (Tr. 23). He also explained that drain tiles are “extremely” difficult

       to remove because when they have been in the ground for a while, they have a

       lot of debris in them, and tree and shrub roots anchor them into the ground.

       (Tr. 37). Due to this difficulty, he said that Foegley Landscape would typically

       cap a drain tile and leave it underground before the company would remove

       one.


[28]   Based on these details, we conclude that there was evidence in the record that

       Foegley Landscape did not damage the drainage system. Because all of Smith’s

       claims, in regards to both the claim and counterclaim, are based on his assertion

       that Foegley Landscape damaged his drainage system, and, because we have

       found that there was evidence that it did not damage the system, we need not

       address the remainder of his arguments. We may affirm a trial court’s general

       judgment on any legal theory supported by the evidence. See Rueth, 659 N.E.2d

       at 687. Accordingly, we conclude that the small claims court’s judgments in

       favor of Foegley Landscape were not erroneous.


       2. Attorney Fees

[29]   Next, Smith argues that even if we affirm the small claims court’s judgments,

       we should still reverse its award of attorney fees because the amount the small

       claims court awarded was unreasonable. He has two grounds for this

       argument—first, that it was unreasonable to award Foegley Landscape an

       amount for Attorney Murphey’s fees because Attorney Murphey was hired by

       the company’s insurer and, therefore, Foegley Landscape did not incur

       Attorney Murphey’s fees; and, second, the small claims court’s award of

       Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015   Page 15 of 21
       Attorney Murphey’s fees was unreasonable because he did not submit any

       documentation for the work he did to justify the fees.7


[30]   When reviewing an award of attorney fees, we apply the clearly erroneous

       standard to factual determinations, review legal conclusions de novo, and

       determine whether the decision to award fees and the amount of the award

       constituted an abuse of the trial court’s discretion. Storm Damage Specialists of

       America v. Johnson, 984 N.E.2d 660, 667 (Ind. Ct. App. 2013). An abuse of

       discretion occurs when the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before it. Id.


[31]   Generally, Indiana follows the American Rule, which requires each party to

       pay his or her own attorney fees. Stewart v. TT Commercial One, LLC, 911

       N.E.2d 51, 58 (Ind. Ct. App. 2009), trans. denied. However, parties may shift

       the obligation to pay such fees through contract or agreement, and courts will

       enforce the agreements as long as they are not contrary to law or public policy.

       Id.


[32]   As for Smith’s first argument—that Foegley Landscape’s insurer actually paid

       for Attorney Murphey’s fees—we note that Attorney Masters never explicitly

       stated that Foegley Landscape’s insurer had retained Attorney Murphey or paid

       Attorney Murphey’s fees. Instead, Attorney Murphey averred in his affidavit

       that he represented Foegley Landscape, and he also entered his appearance in



       7
           Notably, Smith does not challenge the reasonableness of Attorney Masters’ fees.


       Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015              Page 16 of 21
       the case on behalf of Foegley Landscape. Nevertheless, we need not resolve

       any factual inconsistencies because Smith’s argument does not have merit even

       if Foegley Landscape’s insurer did retain and pay Attorney Murphey.


[33]   Indiana courts have repeatedly held that a party is not required to personally

       pay the bills for his representation in order to be eligible for an award of

       attorney fees. Rand v. City of Gary, 834 N.E.2d 721, 722 (Ind. Ct. App. 2005)

       (awarding a fiscal officer of the City of Gary, Indiana attorney fees even though

       the City of Gary was paying the fees). In Harco, Inc. of Indianapolis v. Plainfield

       Interstate Family Dining Assoc., 758 N.E.2d 931, 944 (Ind. Ct. App. 2001), we

       held that “the trial court is not constrained to award attorney fees only when

       those fees have been directly billed to and paid by a party.” Instead, “the

       relevant inquiry is whether a party has incurred attorney fees.” (Emphasis in

       original) (implying that “incurring fees” is not equivalent to incurring the

       obligation to pay those fees). Based on this precedent, we conclude that the

       small claims court did not abuse its discretion in awarding Foegley Landscape

       an amount for Attorney Murphey’s fees, regardless of whether Attorney

       Murphey’s fees were paid by Foegley Landscape’s insurer.


[34]   Second, Smith argues that the small claims court abused its discretion in

       awarding Foegley Landscape attorney fees for Attorney Murphey’s

       representation. Specifically, he claims that Attorney Murphey’s fee was

       speculative, and therefore unreasonable, as Attorney Murphey did not submit

       any documentation clarifying what work he did on the case or how he

       calculated his fee. We agree with Smith.

       Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015   Page 17 of 21
[35]   Even when a contract provides for a recovery of attorney fees, the attorney fees

       recovered must be reasonable.8 Id. The determination of reasonableness of

       attorney fees necessitates consideration of all relevant circumstances. Id.

       Factors to consider include:

                  (1) the time and labor required, the novelty and difficulty of the
                  questions involved, and the skills requisite to perform the legal
                  service properly;

                  (2) the likelihood, if apparent to the client, that the acceptance of
                  the particular employment will preclude other employment by
                  the lawyer;

                  (3) the fee customarily charged in the locality for similar services;

                  (4) the amount involved and the results obtained;

                  (5) the time limitations imposed by the client or by the
                  circumstances;

                  (6) the nature and length of the professional relationship with the
                  client;

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

                  (8) whether the fee is fixed or contingent.


       Weiss v. Harper, 803 N.E.2d 201, 208 (Ind. Ct. App. 2003).




       8
           This contract also explicitly provides that the fees must be “reasonable.” (Foegley’s Ex. 1).


       Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015                            Page 18 of 21
[36]   Judicial notice of the reasonableness of attorney fees is permitted in certain

       routine actions, such as dissolutions of marriage, in which modest fees are

       sought. Loudermilk v. Casey, 441 N.E.2d 1379, 1387 (Ind. Ct. App. 1982).

       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. Stewart, 911 N.E.2d at 58.


[37]   In Fortner v. Farm Valley-Applewood Apartments, 898 N.E.2d 393, 400 (Ind. Ct.

       App. 2008), this Court held that an attorney fee award of $1,335.04 in a small

       claims action—which is an award approximately equivalent to the instant

       case—was consequential enough that it required objective evidence of the

       nature of the legal services and reasonableness of the fee. We held that the trial

       court had abused its discretion in awarding the fee because there was nothing in

       the record establishing the number of hours that the counsel had spent on the

       case or the counsel’s hourly rate. Id. Likewise, in Loudermilk we held that a

       trial court had abused its discretion in awarding attorney fees because there was

       no evidence of the value of the lawyer’s services, the nature of his services, or

       the time the lawyer had spent on the case. Loudermilk, 441 N.E.2d at 1387. We

       noted that a lawyer was required to provide evidence of the value of his service

       even when the lawyer’s fees equaled only six percent of the total damages

       awarded. Id. (discussing Parrish v. Terre Haute Sav. Bank, 431 N.E.2d 132 (Ind.

       Ct. App. 1982), reh’g denied, trans. denied).


[38]   Here, the small claims court awarded attorney fees in the amount of $1,500,

       which is a significant portion of the total damages of $5,410.55. Because

       Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015   Page 19 of 21
Attorney Masters provided documented evidence that his services were worth

$500 in attorney fees, we attribute the remaining $1,000 to Attorney Murphey.

Yet, there is no evidence in the record concerning the nature of Murphey’s

representation, the hours he spent on the case, or his hourly charge. He merely

submitted an affidavit to the small claims court stating that, as a result of his

representation, Foegley Landscape had incurred costs and legal expenses of

$4,045.90 related to the litigation. Absent information concerning the nature of

Attorney Murphey’s services, the small claims court could not have properly

evaluated the reasonableness of his fees and therefore abused its discretion in

awarding attorney fees. Accordingly, we reverse the small claims court’s award

of attorney fees with respect to Attorney Murphey and remand to the small

claims court to hold a hearing and determine reasonable attorney fees for

Attorney Murphey.9 See Fortner, 898 N.E.2d at 400 (remanding to the trial

court to hold a hearing and determine reasonable attorney fees when there was

insufficient evidence to support the trial court’s award of attorney fees);

Loudermilk, 441 N.E.2d at 1388 (remanding for further proceedings when there

was insufficient evidence to support the reasonableness of the trial court’s

award of attorney fees).




9
  Significantly, we note that, by filing an action in the small claims court, Foegley Landscape waived its right
to recover more than the $6,000 jurisdictional limit of the small claims court. Hoang v. Jamestown Homes, Inc.,
768 N.E.2d 1029, 1035 (Ind. Ct. App. 2002), reh’g denied, trans. denied. We are affirming the trial court’s
judgment of $3,910.55 for the amount owed under the contract, plus interest; $94 in court costs; and $500 for
Attorney Masters’ attorney fees, so those amounts contribute to the $6,000 jurisdictional limit. Therefore,
the maximum amount Foegley Landscape may recover for Attorney Murphey’s fee on remand is $1,495.45.

Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015                          Page 20 of 21
[39]   Affirmed in part, reversed in part, and remanded.


       Barnes, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 71A02-1405-SC-169 | April 20, 2015   Page 21 of 21
