                                                                          Feb 18 2015, 9:28 am




      ATTORNEY FOR APPELLANT                                     APPELLEE PRO SE
      Mark Small                                                 Paul J. Watts
      Indianapolis, Indiana                                      Spencer, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Richard A. Clem,                                          February 18, 2015

      Appellant-Defendant,                                      Court of Appeals Cause No. 60A05-
                                                                1406-PL-297
              v.                                                Appeal from the Owen Circuit Court.
                                                                The Honorable Dena Martin, Special
                                                                Judge.
      Paul J. Watts,                                            Cause No. 60C01-1312-PL-567
      Appellee-Plaintiff.




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   Attorney Richard Clem appeals the trial court’s denial of his summary

      judgment motion and the grant of attorney Paul Watts’ summary judgment

      motion following Watts’ complaint seeking judgment against Clem for attorney

      fees in a dissolution case.




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[2]   We reverse and remand with instructions for the trial court to enter summary

      judgment in favor of Clem.


                                                       Issue
[3]   The sole issue is one of statutory interpretation and asks us to determine

      whether pursuant to Indiana Code section 33-43-4-2 (2004) an attorney fee lien

      is valid if the intention to hold a lien is filed before judgment is rendered in the

      case.


                                Facts and Procedural History
[4]   The dispositive facts are undisputed. In April 2011, Wife retained Watts to

      represent her in a dissolution proceeding in Hamilton County. Fourteen

      months later, in June 2012, Wife discharged Watts. Watts withdrew his

      appearance in July 2012. On September 6, 2012, Watts filed a Notice of

      Attorney Fee Lien in the Hamilton Circuit Court wherein he “enter[ed] his

      intention . . . to hold a lien pursuant to Indiana Code § 33-43-4-1 on all money

      and property awarded to [Wife] . . . .” Appellant’s App. p. 15. The Notice

      further provided that the lien was in the amount of $5,649.48.


[5]   In September 2013, the Hamilton Circuit Court issued a dissolution decree that

      directed Clem, who was Husband’s counsel, to make a $29,749.46 distribution

      payment to Wife using funds provided by Husband. Clem distributed the

      money to Wife without paying Watts the value of the lien. Watts responded by

      filing a complaint against Clem and Wife requesting judgment in the sum of

      $5,649.48.

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[6]   Clem filed a Motion for Summary Judgment wherein he argued that Watts’ lien

      was not valid because Watts filed the lien before the trial court’s entry of

      judgment in the dissolution case. According to Clem, Indiana Code section 33-

      43-4-1 requires an attorney to file a lien not later than sixty days after the

      judgment is rendered. Watts also filed a Motion for Summary Judgment

      wherein he argued the statutory requirement that the notice of intention to hold

      a lien be filed not later than 60 days after the judgment is entered does not

      preclude a notice of lien from being filed before the judgment is entered creating

      an effective lien.


[7]   The trial court denied Clem’s summary judgment motion and granted Watts’

      motion. Clem appeals the denial of his motion and the grant of Watts’.


                                    Discussion and Decision
[8]   A party is entitled to summary judgment upon demonstrating the absence of

      any genuine issue of fact as to a determinative issue unless the nonmoving party

      comes forward with contrary evidence showing an issue of fact for trial. Dugan

      v. Mittal Steel USA, Inc., 929 N.E.2d 184, 185-86 (Ind. 2010).


[9]   Our review on appeal from summary judgment is de novo. Hughley v. State, 15

      N.E.3d 1000, 1003 (Ind. 2014). On appeal, our task is the same as the trial

      court’s. Id. We must determine whether the moving party has shown from the

      designated evidentiary matter that there is no genuine issue as to any material

      fact and that the moving party is entitled to judgment as a matter of law. Id.; see

      also Ind. Trial Rule 56. We construe all facts and reasonable inferences in favor

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       of the nonmoving party to ensure that it is not improperly denied its day in

       court. Dugan, 929 N.E.2d at 186. The appellant has the burden to persuade us

       that the trial court made the wrong decision. Rosi v. Bus. Furniture Corp., 615

       N.E.2d 431, 434 (Ind. 1993).


[10]   Where, as here, the relevant facts are not in dispute and the interpretation of a

       statute is at issue, such statutory interpretation presents a pure question of law

       for which summary judgment disposition is appropriate. Sanders v. Bd. Of

       Comm’rs of Brown Cnty., 892 N.E.2d 1249, 1252 (Ind. Ct. App. 2008), trans.

       denied. Our standard of review is not altered by cross motions for summary

       judgment. Id.


[11]   The first step in interpreting a statute is to determine whether the legislature has

       spoken clearly and unambiguously on the point in question. Sees v. Bank One,

       Indiana, N.A., 839 N.E.2d 154, 157 (Ind. 2005). When a statute is clear and

       unambiguous, we need not apply any rules of construction other than to require

       that the words and phrases be taken in their plain, ordinary, and usual sense.

       Id. Clear and unambiguous statutes leave no room for judicial construction. Id.


[12]   The attorney’s lien statutes at issue in this case are Indiana Code sections 33-43-

       4-1 and 2, which provide that:


               An attorney practicing law in a court of record in Indiana may
               hold a lien for the attorney’s fees on a judgment rendered in favor
               of a person employing the attorney to obtain the judgment.




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               An attorney, not later than sixty (60) days after the date the
               judgment is rendered, must enter in writing upon the docket or
               record in which the judgment is recorded, the attorney’s intention
               to hold a lien on the judgment, along with the amount of the
               attorney’s claim.


[13]   An early version of this statute provided that an attorney had to enter his notice

       of intention to hold the lien at the time the judgment of the trial court was

       rendered. Alderman v. Nelson, 111 Ind. 255, 12 N.E. 394 (1887). The rule

       subsequently evolved to permit an attorney to enter his lien within a reasonable

       time after the entry of the judgment. Wood v. Hughes, 138 Ind. 179, 37 N.E. 588

       (1894). The statute was amended in 1949 to allow an attorney sixty days from

       the entry of final judgment to enter his lien. Stroup v. Klump-O’Hannes, 749

       N.E.2d 622, 624 (Ind. Ct. App. 2001). Specifically, the statute was amended to

       state as follows:


               Any attorney practicing his profession in any court of record in
               this state, shall be entitled to hold a lien, for his fees, on any
               judgment rendered in favor of any person or persons employing
               such attorney to obtain the same: Provided, That such attorney,
               within sixty (60) days from the time such judgment shall have
               been rendered, enter in writing upon the docket or record
               wherein the judgment is recorded, his intention to hold a lien
               thereon, together with the amount of his claim.


[14]   Ind. Code § 33-1-3-1 (1949). Cases interpreting this statute were clear that an

       attorney had sixty days from the entry of final judgment to enter his lien,

       Hollingsworth v. Stoops, 671 N.E.2d 165, 167 (Ind. Ct. App. 1996), and a lien

       filed before any judgment was rendered was not valid because there was no

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       judgment to which the lien could attach. Greenfield v. Greenfield, 591 N.E.2d

       1057, 1059 n.4 (Ind. Ct. App. 1992), trans. denied.


[15]   These cases would be dispositive to the issue in the instant case; however, in

       2004, Indiana Code section 33-1-3-1 was repealed, amended, and recodified at

       Indiana Code sections 33-43-4-1 and 2, where section 2 now provides that an

       attorney must file his lien “not later than sixty (60) days after the judgment is

       rendered.” Citing no authority in support of his proposition, Watts argues that

       this slight change in the wording of the statute has relaxed the statutory

       requirements to allow liens to be filed before a judgment is rendered. We

       disagree.


[16]   First, in Indiana Code section 33-43-4-2, the legislature clearly and

       unambiguously stated that an attorney must enter his intention to hold a lien on

       the judgment “in writing upon the docket or record in which the judgment is

       recorded” not later than sixty days after the date the judgment is entered. This

       clear and unambiguous language contemplates that a judgment must be

       recorded before a lien may be entered.


[17]   Further, this result is consistent with our construction of the mechanic’s lien

       statutes. We look to statutes with similar statutory purposes for guidance.

       Hollingsworth, 671 N.E.2d at 167. The mechanic’s lien statute is similar to the

       attorney’s lien statute in that both were enacted to protect those who labor on

       behalf of others. Id. A person who wishes to acquire a lien upon property is

       required to file notice of his intention to hold the lien for the amount of the


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       claim in the recorder’s office not later than sixty days after performing labor or

       furnishing materials. Ind. Code § 32-28-3-3 (2008). This sixty-day period for

       filing a notice of intention to hold a mechanic’s lien commences when the

       subcontractor “finishes task for which it was hired.” Riddle v. Newton Crane

       Service, Ind., 661 N.E.2d 6, 10 (Ind. Ct. App. 1996), trans. denied. Similarly, the

       sixty-day period for filing a notice of intention to file an attorney fee lien

       commences when the judgment is entered.


                                                  Conclusion
[18]   Pursuant to Indiana Code section 33-43-4-2, an attorney fee lien is not valid if

       the lien is filed before judgment is entered in the case. The trial court therefore

       erred in granting Watts’ summary judgment motion and denying Clem’s. We

       reverse and remand with instructions for the trial court to grant summary

       judgment in favor of Clem.


       Friedlander, J., and Pyle, J., concur.




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