      MEMORANDUM DECISION
                                                                               FILED
      Pursuant to Ind. Appellate Rule 65(D),                               Apr 20 2016, 9:24 am
      this Memorandum Decision shall not be
                                                                               CLERK
      regarded as precedent or cited before any                            Indiana Supreme Court
                                                                              Court of Appeals
      court except for the purpose of establishing                              and Tax Court

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


      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Leroy Burke, Jr.                                          Matthew J. Elkin
      Bunker Hill, Indiana                                      Kokomo, Indiana
      Appellant Pro Se



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Leroy Burke, Jr.,                                         April 20, 2016
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                34A05-1509-PL-1404
              v.                                                Appeal from the Howard Superior
                                                                Court
      Matthew Elkin,                                            The Honorable George A.
      Appellee-Defendant.                                       Hopkins, Judge
                                                                Trial Court Cause No.
                                                                34D04-1504-PL-309



      Altice, Judge.


                                                Case Summary


[1]   Leroy Burke filed a frivolous lawsuit against Matthew Elkin, and Elkin

      responded with a counterclaim for abuse of process and a motion for summary


      Court of Appeals of Indiana | Memorandum Decision 34A05-1509-PL-1404 | April 20, 2016        Page 1 of 4
      judgment. Both parties proceeded pro se. The trial court granted summary

      judgment in favor of Elkin and set the matter for a damages hearing. At the

      hearing, Elkin, an attorney, testified regarding the time he spent defending

      against Burke’s frivolous suit and indicated that his hourly rate was $200.

      Based upon this evidence, the trial court awarded damages to Elkin in the

      amount of $1600 plus costs. On appeal, Burke argues that Elkin was not

      entitled to recover his own attorney fees as damages.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On April 21, 2015, Burke filed a complaint against Elkin based on Elkin’s prior

      representation of Burke in a 2001 post-conviction relief action. Elkin responded

      with a number of filings, including a counterclaim for abuse of process and a

      motion for summary judgment. Elkin designated evidence that Burke had

      previously filed suit against him based on the same claim. The prior case was

      dismissed with prejudice in October 2006, and Burke did not appeal.

      Accordingly, Elkin argued that the instant action was frivolous and filed in bad

      faith. The trial court agreed and granted summary judgment in favor of Elkin

      on the complaint and counterclaim. The trial court then set the matter for a

      hearing on damages.


[4]   At the damages hearing on August 27, 2015, Elkin testified in relevant part:

              I’m an attorney practicing law for 25 years in the State of
              Indiana. I am an attorney in good standing with the Indiana

      Court of Appeals of Indiana | Memorandum Decision 34A05-1509-PL-1404 | April 20, 2016   Page 2 of 4
              Supreme Court, familiar with the time and costs associated with
              prosecuting an action such as this. Since the filing of this case
              and my filing of responses, various documents pointing out this
              has already been tried and decided, filing a Motion for Summary
              Judgment, filing motions to strike and obtaining judgment, I put
              approximately 8.2 hours into the case, which would include
              obtaining affidavits, doing research, putting together the various
              motions. I charge $200.00 an hour. Basically my attorney fees in
              this case are my out-of-pocket costs and I’m asking for damages
              in the sum of 8.2 hours times $200.00, $1640.00.


      Transcript at 4. Though given the opportunity, Burke did not cross examine

      Elkin regarding the amount of attorney fees claimed. The trial court took the

      matter under advisement and entered judgment the following day against Burke

      in the amount of $1600 plus costs.


                                           Discussion & Decision


[5]   Burke’s sole argument on appeal is that the trial court abused its discretion

      when it ordered him to pay Elkin’s attorney fees. It did not.


[6]   Despite the American Rule, Ind. Code § 34-52-1-1(b) makes clear that a party to

      a civil action may recover attorney fees incurred defending against a frivolous

      action or an action litigated in bad faith. Similarly, attorney fees may be

      awarded as damages in an action for abuse of process. See I.C. § 34-52-1-1(c).

      The issue in this case is whether Elkin may recover attorney fees for

      representing himself.


[7]   In Ziobron v. Crawford, 667 N.E.2d 202, 208 (Ind. Ct. App. 1996), trans. denied,

      this court adopted the majority rule permitting an attorney representing him or
      Court of Appeals of Indiana | Memorandum Decision 34A05-1509-PL-1404 | April 20, 2016   Page 3 of 4
       herself to recover an award of attorney fees for the time and effort spent in

       defending against a frivolous lawsuit. The court expressly held, “an attorney

       may recover compensation for the time and effort spent in defending against a

       malicious prosecution as an element of his damages.” Id. The court explained:

       “To hold otherwise would be analogous to prohibiting an auto body repairman,

       who had repaired his own car, from recovering reasonable compensation from

       the vandal who had damaged the car.” Id.


[8]    As set forth above, the trial court agreed with Elkin that Burke’s complaint was

       frivolous and that Elkin should recover damages for abuse of process. Burke

       does not appeal that determination. He challenges only the calculation of

       resulting damages. Pursuant to Ziobron, the trial court properly awarded Elkin

       reasonable compensation for the time and effort he spent as an attorney

       defending himself below.1


[9]    Judgment affirmed.


[10]   Bailey, J. and Bradford, J., concur.




       1
         Burke asserts in passing that Elkin failed to “produce any time sheet, invoice, schedule or other document
       to evidence his alleged time.” Appellant’s Brief at 3. However, such a document was not required because
       Elkin testified at the damages hearing about the amount of time he spent defending the action and his hourly
       rate. Accordingly, there was evidence presented upon which the trial court could make a determination
       regarding the amount of damages.

       Court of Appeals of Indiana | Memorandum Decision 34A05-1509-PL-1404 | April 20, 2016            Page 4 of 4
