*1 free from assignment of errors that Souder’s control Souder’s and direction Liability performance services; of the Referee is con over the of her the decision and presents question (2) law trary engaged us with whether Myers was in an inde- sufficiency supporting trade, of the evidence pendently established occupation, Liability Referee’s decision. Ind.Code profession Cab, Safety business. Inc. v. appeals 22-4-32-12. Because from Souder Indiana Employment Security (1968), Board negative judgment Liability Ref 572, 143 Ind.App. 25, 30-31. eree, proof has the he burden of establish While some findings of fact may not Myers’s employment were not services sustain the decision, finder fact’s we subject Employment Security Act. review the collectively facts as a whole. Id. Insurance, Boerger A. Inc. v. Indi Norman Our review of the record shows that: (1973), Employment Security ana Board Souder and interviewed decided to hire 154, 797, Ind.App. 799. Myers and alone that he could have fired Liability Referee acts as the finder of fact Myers; Myers required perform was her in contribution assessment cases under the during working services specified hours by Employment Security Act. Ind.Code 22-4- Souder; the equipment and facilities used His 32-9. decision is conclusive and bind by Myers was supplied by Souder without ing to all fact if supported Myers; Myers performed her probative by substantial evidence of value. only premises services on the of Souder’s Bend Corporation Employ Fish South office; Myers special had no training Security ment Division 116 Ind.App. job.2 for her Liability conclude that We 348, 301, 302. The Referee’s deci Referee’s supported by decision is the evi may be set only sion aside if the facts lead dence, and that has Souder failed to show to a conclusion different from that reached Myers employee. was not his by the Referee. Id. News Publishing Affirmed. Company v. Verweire 113 Ind.App. 451, 161, We do not weigh 163. HOFFMAN, J., J., GARRARD, P. or judge credibility the evidence of wit concur. nesses; rather, we review evidence and inferences favorable to the Referee’s deci Corporation
sion. South Bend Fish v. Em
ployment Security Division 116 Ind.
App. 302. An “employing any unit” is individu LEIBOWITZ, Defendant-Appellant, Carl organization employs al or which one or people performing for it more services with
in the State. Ind.Code 22-4-6-1. Services Moore, Richard MOORE Helen performed by person for remuneration Plaintiffs-Appellees. employment subject are deemed to be No. 3-1281A307. regardless the Act of whether a common relationship law of master and servant ex Indiana, Court of 22-4-8-l(a). ists. Ind.Code Whether an Third District. organization is an employing individual June a question Safety Cab, unit is of fact. Aug. 18, 1982. Rehearing Denied Employment Indiana Security Board question This applying answered
two-pronged (1) Myers test: whether testimony find recognition” 2. We that Souder’s Myers’s he was mount to “federal em- “probably” ployment status, audited the Internal Revenue as he states his brief. hardly Service on his 1979 tax return tanta- *2 attorneys’
for of reasonable award with the terms of accordance the note. Eventually, granted trial court motion for default filed the Moores. $37,274 were They awarded in principal to- gether with accrued interest in the sum of upon representations Based $3634.16. conducting counsel a hearing but without evidence, receiving the court entered its of attorney award fees. We conclude error. long Our courts have held that while liability, a defendant’s admits it default damages. does not admit the amount of Oxidermo, (on Siebert Inc. v. Shields rehearing) (1981),Ind.App., 430 401. What amount constitutes a reasona question ble attorney fee is a fact to be determined under circumstances of a given just concerning as are professional reasonableness other fees. Lystarczyk Ind.App., Smits435 N.E.2d 1011 .
Admittedly, our courts some held judge qualified times that the trial is a expert may “judicially and as such notice” fee.1 amount of a reasonable We con sidered these cases in Aircraft U.S. Financ ing, Inc. Ind.App., v. Jankovich N.E.2d 287 that the and concluded fact that Bend, Keckley, J. South for de- David to, the attorney’s paid, client had fendant-appellant. controlling a certain fee was not to rea Cohen, Walker, Jr., William J. Max K. judicial sonableness and that notice of what Cosentino, Shewmaker, Walker & Slabaugh, constitutes reasonable fee should not be Elkhart, plaintiffs-appellees. applied except to usual and mundane af involving relatively fairs of the court mod GARRARD,Judge. est sums. appeals an of ten Carl Leibowitz award view, In our expressed by Judge and as ($10,000)as attorneys’ dollars thousand Chipman in Aircraft Financing, U.S. in a note. He contends promissory suit on a required' place extra effort of record was insufficient to sustain the performed evidence of the services it award and further was excessive. their value under the circum- stances is vastly outweighed On March 1981 Moores filed the addi- against upon apparent integrity thereby Leibowitz tional complaint imparted based in- payable Lystarczyk, of a note determination. See also breach supra. additionally prayed stallments. The Moores Gary City Gary provides practical School rel. While this solution State ex Artists cases, League. mundane it is nevertheless an aberration notice, judicial Buesking Belcher v. the doctrine of at least since A.L.R.2d (1978), Ind.App., of minimum fee See abolition schedules.
We therefore reverse as to award I also disagree imposition with the of this limitation attorneys’ practical further because its pro- and remand for effect would be to eliminate notice ceedings consistent herewith. taking judicial
fees. Before
notice of attor-
ney
would first have to
HOFFMAN,
J.,
sepa-
P.-
dissents and files
*3
determine if the case was appropriately
opinion.
rate
mundane and the sum
enough.
modest
Re-
quiring the
judge
trial
to make such a de-
STATON, J., concurs in result and files
complicates
termination
proceedings
the
at
separate opinion.
contrary
trial and is
purpose
judi-
of
STATON, Judge, concurring in result.
notice,
cial
is
expedite
which
to simplify and
trial proceedings
possible.
where
In addi-
by Judge
I concur in the result reached
tion, a
attorney
careful
would have to intro-
Garrard. While I
not believe the
do
trial
duce
regarding
value
by awarding
court
I
attorney
erred
services to insure that the award would be
believe
trial
its
court abused
discretion
upheld on appeal if the
court
trial
has made
by awarding an unreasonable amount.
an incorrect
result,
determination. As a
jury,
judge
In cases tried without a
always
evidence would almost
be admitted
may
judicial
take
notice of
what
reasona-
the vague
because
“modest and mundane”
be,
ble
fee would
even absent
espoused by Judge
standard
pre-
Garrard
any evidence in the record. McDaniel v.
attorneys
vents
and trial
judges
from
551,
McDaniel
245 Ind.
reaching
proper
through legal
decision
Marriage
Gray (1981),
In re
reasoning.
Ind.App.,
(reh. denied);
vagueness
of this standard
illus-
Fox v. Galvin
Ind.App.,
by my disagreement
trated
with
Gar-
Judge
103, 108;
Ewin,
Marshall
Russell R.
Inc.
rard’s
judicial
determination that
notice of
attorney fees
not proper
was
in the present
Contra,
Henry
Gilpin
B.
Co. and
case. This
did
case
not involve
novel
Co.,
Mooney-Kiefer-Stewart
David
difficult
law or
fact and
(1982), Ind.App.,
Moxley
ly against the judge. Ar- before Common sense and circumstances sonable. and commercial (1979), Ind.App., 398 v. Dirrim nold debtor practice dictates has con- 426, 441. the holder tracted to reimburse for the for- mer and not the latter. attorney fees award of
The unreasonable
trial court’s
an abuse
in this
construing
this
note’s at-
default
requesting the
When
discretion.
provision, I must
torney
adopt
con-
informed
judgment, Moore’s
be
appears
struction which
in accord
and one-
spent
seventeen
he had
common sense and the obvious intention
For
working on
case.
quarter hours
manner,
parties.
in this
Construed
one-quarter hours of
these seventeen
provision obligated
issue is: What has this
services,
was awarded
Moore
routine
Obviously, attorney
debtor to
do?
under
$10,000
attorney fees
as “reasonable”
promissory notes are not
*4
provision, approxi-
attorney fee
the note’s
to
agreements by
indemnify
debtors
holders
attorney fee
each of his
mately
for
$580
expenses
for their total
since it is axiomatic
hours.1
provi-
that fees
pursuant
awarded
to these
that
Leibowitz contends
Understandably,
Similarly,
must
sions
be “reasonable.”
attorney
was unreason-
amount of
the
are
in
agreeing
provisions
debtors
these
opinion
written
de-
court’s
able.
trial
reimburse
their
to
holders for
total reasona-
errors
motion to correct
nying Leibowitz’s
are
expenses
ble
since all collection costs
attorney fees
amount of
reveals that
the
at
judgment
unknown
the time of
when
twenty-five percent con-
the
was based on
attorney fees are awarded.3 It follows that
between Moore
tingent
agreement
fee
purpose
the
reim-
of these
is to
determining that
Apparently
attorney.
his
burse the
holder for
amount of reasona-
agreement was
as be-
this fee
attorney
vindicating
ble
incurred in
his
the trial
attorney,
and his
tween Moore
rights by obtaining
collection
a
liability for
court
that Leibowitz’s
found
on the note.4
equal
attorney
approximately
fees should
judgment.2
one-fourth
many
But which of the
different meas-
attorney
ures of
“reasonable”
fees has
agreement was rea-
Assuming
agreed
debtor
to reimburse
the holder?
to
attorney,
Moore and his
sonable
between
example,
by
jury
For
a fee awarded
a
is
incorrectly
it as a basis
the trial court
used
reasonable if based on sufficient evidence.
trial
attorney fee award. The
for Moore’s
Thus,
by jury
in a
debtor is bound
the rea-
a determination of
confused
by
jury’s
to abide
if with-
value of the services
determination
sonable fair market
whether
presented.
determination of
in the evidence
a fee
Similarly,
rendered with a
attorney
belongs
judgment,
is recovered
1. The
of
on the
an award based
award
judgment.
part
contingent
impliedly
holder as
Johnson v.
of
on a reasonable
in-
fee
334, 335;
City
Pivot
Crossland
collecting
cludes the
of
debt. Be-
costs
Realty
Savings
Co.
State
& Trust Co.
these
cause
costs are unknown when the attor-
QQ3 stipulated in a note is reasonable ant a promissory provision note “a unconscionable; expressly unless debtor for like services...” Id. contracting accept this amount. In such The test is agreement not whether the fee accept a case holder has between the holder note and his stipulated if amount even below his actual attorney is reasonable. expenses.
reasonable fee a reason- Finally, The nature and amount of fee agreement attorney-client able is distin- charged a holder properly guishable from determination the rea- subject agreement for contractual be- sonable fair market value of the services tween the and the holder. In at- Although objectively rendered. both are torney disciplinary parlance an agree- such determined, they necessarily equiva- are not ment is either excessive or reasonable. The apparent lent. This is from the agreement reasonableness of a fee is deter- apparently where an reasonable one- mined in accordance with the Code of Pro- contingent fourth resulted fessional Responsibility, Disciplinary Rule $10,000 an unreasonable award sev- determining 2-106. whether a fee is and one-half enteen hours routine subject reasonable so as not work. to disciplinary proceedings, pro- DR 2-106 illustrates, attorney pro- As ease following guidelines: vides the mandatory in promissory only visions notes should en- “DR Legal 2-106 Fees for Services. title holder to the reasonable fair mar- “(A) lawyer shall not enter into an value the legal ket services which were agreement for, charge, collect *5 reasonably necessary judg- obtain the illegal or clearly excessive fee. ment. These should not be inter- “(B) when, A is clearly fee excessive af- preted as requiring the debtor to reimburse ter facts, a review lawyer of the a the holder for the the holder’s ordinary prudence would be left awith agreement attorney reasonable fee with his definite and firm conviction that agreement because this may be based on fee is in excess aof reasonable fee. considerations other than the value of the Factors guides to be considered as services rendered. is a This common sense determining the reasonableness a fee interpretation based on obvious inten- following: include the light of the parties tion of fair commer- (1) required, The time and labor practice. cial novelty difficulty and of the interpretation I believe that this is con- involved, and requisite the skill to per- Streets, supra. Judge sistent with Hoff- legal form the service properly. man states in his dissent that in Streets (2) likelihood, The if apparent to the Court expressly approved contingen- “this a client, acceptance that the par- cy equal judg- fee to one-third of the final employment ticular preclude will other as a attorney Judge ment fee.” employment by lawyer. appellees Hoffman omits that in Streets the (3) charged customarily The fee in the testimony had “introduced a show that locality legal for similar services. for like services would be (4) The amount involved and the re- contingent a fee of one-third of the final sults obtained. Streets, Thus, judgment.” supra at 921. (5) The time imposed by limitations while reasonable fair market value of client or the circumstances. might equal services rendered (6) length The nature and of the pro- fee agreement amount of the between the relationship fessional client. attorney, note his holder the fee experience, reputation, (7) a agreement part can not be of the test ability lawyer lawyers per- applied by determining the trial court in forming the services. attorney amount of fees to awarded. be (8) test to applied be the trial court Whether the fee fixed contin- pursu- gent. whether the award of contingent arrangement. not enter into an fee Such was lawyer shall
“(C) A in the Moore’s for, charge, done case. or collect a arrangement had advised Moore of the difference be- representing fee for a de- contingent payment hourly tween on a fixed rate and (Foot- a criminal case.” fendant payment contingent fee basis. on a Accord- omitted.). *6 necessary services reasonably to obtain the experienced attorney. may The fee be even judgment. Fluctuations in fair market val- higher necessary holder feels it to if the ues are objective on market based forces forego employ- to other induce the and can be easily anticipated more by ment, or labor under a time limitation. debtor. In obliga- this manner a debtor’s tion roughly equivalent despite remains fee subjective most deci- Perhaps the holder’s agreement actions of the eventual holder. sion regarding a fee is whether Therefore, attorney fee in prom- contingent. it should A contin- be fixed issory only notes entitle the should holder to gent agreement may result in an un- fee fair market value reasonable of the type usually large fee for the and amount legal reasonably services which were neces- of legal performed services and still be rea- sary to judgment. obtain the Contingent client. sonable as to the agreements a needed of af- provide following 2-106(B) means The factors from DR may be fording capable legal service those other- considered when determining the pursue legal wise market value of financially unable to meritori- fair serv- ices: having questionable ous recoveries. claims judg- possibility “(A)
Because of the The required, time and labor uncollectible, many ment will be holders novelty difficulty ques- and of the agree involved, suing past-due requi- *7 “Second, judge the trial court has before (1981), v. Ind.App., McBride McBride 427 him proceedings the entire the of case. 1148; Marriage In Gray (1981), N.E.2d re of awarding attorneys done, of is 696; 422 Ind.App., First Valley N.E.2d void, not in light but in of all that is (1980), Ind.App., Bank v. First S & L Ass’n involved in the litigation. See Geberin v. 1237; Farthing 412 Farthing N.E.2d v. Geberin, supra, (1977), Ind.App. 255, 172 941; [ (1978), Ind.App., 382 N.E.2d Fox v. 360 41]; N.E.2d Wireman v. Wireman 103; (1978), Galvin Ind.App., 381 N.E.2d Kizer v. Davis (1977), Ind.App., 369 N.E.2d (1976), [168] Ind.App. [295], 343 N.E.2d 439; Robledo, 292. Melnyk See also v. (1977), supra; Geberin v. Geberin Ind. 41; App. (1967), Pitcher Wireman v. Wire v. Baltz 242 Ark. man 343 N.E.2d S.W.2d 859. Although usually may present not a trial court take be remembered that in the trial court entered a default case the judicial judgment notice without disclosure at in favor opportunity object, Marriage an to In re of of the Moores. There was no trial. Leibowitz Gray (1981), Ind.App., 422 it must refused to defend in this action. than a nothing of more of an stat breach install- Court the California “As Robledo 134 Cal. note. Melnyk ment The Moores were
ined
at 605:
Rptr.
awarded a default
on their com-
Surely this
plaint.
makes its determina-
case comes within the
trial court
‘The
aof number of
expertise
regard
after consideration
the trial
with
tion
factors,
nature
the liti-
including the
the amount of reasonable
fees.
the
in-
difficulty,
its
amount
gation,
Smits,
cites
majority
Lystarczyk
in
volved,
required
its han-
the skill
(1982)
support
subject of .. . lack of his client that he could take the case on a *8 finding by evidence is fatal.... time and basis or that he could as to of an the value on a contingent take the case fee basis. supported by testimo services should be explaining the procedure, After client ny.’ 225 183.” 407 N.E.2d at N.E.2d at plaintiff’s informed the counsel that he 295-296. charges did not desire time and basis as he thought might the case become way no too case can in be charac- expensive contingent The case “unique.” terized involves to a hearing, At arrangement. prior at plain-
which defendant present, was
tiffs counsel had that the fee indicated
arrangement between himself ( n ) contingent client was one-third fee.
“However, plaintiff requested when
default, he informed the Court that he
could remember the fee whether ar- ( n ) rangement one-third or one- (¼). explained
fourth He further
the reason for the contingent basis large part upon
was based in what he and
the client perceived difficulty to be the
enforcing the judgment. the collection of opted Court out for the lower of the $10,-
two fees and entered a fee order of
000.00, which would have been slightly (V4)
less than agreement.” the one-fourth
Whether fee is contingent fixed or is a
factor which must be looked at determin
ing whether a fee is excessive. Code Responsibility, Professional DR. 2-
106(B). I. Mortg. In Streets v. M. G. C.
Corp., supra, expressly approved this Court
a contingency equal to one-third of the judgment
final as a
fee. The Indiana Court denied January
transfer of on all Streets
justices concurring. ample prece This is finding
dent contingent that a
fee based one-fourth judgment on the final
is reasonable. reasons,
For the above stated I would
affirm of the trial court. SLUSS, Respondent-Appellant,
Randall Indiana, Petitioner-Appellee.
STATE of
No. 1-282A41. Indiana,
Court
First District.
June notes ing to his chose the attorney, Moore contin- con- 2-106(B) eight lists factors to be DR anticipated gent fee basis because he determining the “reasonableness sidered in would difficult to be collect. considera- factors include fee.” These Although attorney might Moore’s receive a evaluating the fee pertinent when tions fee larger than he would have received wishes, the client’s but light of charged in rate, pursuant might he hourly to an also to the fair market val- which are unrelated Thus, receive less. both Moore and at- his legal work done. This is because ue of the torney regarding took an informed risk designed DR establish the 2-106 was agreement subjective their based on an attorney allowed re- minimal conduct perception bargain’s financial sound- charges that he his garding ness. never factors were intended as client. Its language Absent express contrary, guideline the reasonableness of to establish prefer- subjective agreement a holder’s award.5 an ences are inappropriate considerations in 2-106(B), in DR fac- listed Of the factors determining pur- an award of (5) (7), (8), part are (2), (6), tors to a promissory provision. suant note making objective fair inapplicable when negotiable executing debtor These factors market value determination. can fairly required note be to reimburse is reasonable between the focus on what any subsequent amount of holder’s fee based attorney, his on the hold- holder and agreement may because that fee requirements regarding er’s subjective upon unexpressed subjective be fashioned example, For attorney’s employment. However, inclinations. a debtor can be higher ordi- may agree to a fee than holder fairly held reimburse the he community because narily charged holder for the legal the fair market value of known, employ a certain well wishes to
Notes
on
notes
tions
and the skill
Rules,
Disciplinary
being subject
disciplinary
Ethical
without
“The
unlike the
action.”
Considerations,
mandatory
Responsibility,
are
in character.
Code
Professional
Prelimi-
nary
8,
Disciplinary
adopted
(originally
state the
level
The
Rules
minimum
Statement
March
1971.).
lawyer
which no
fall
conduct below
can
905
292;
perform
legal
(1972),
Ind.App.
service
Roe Doe
154
203,
site
2-106(B)(l)
properly.
528;
]
Hardiman v. Hardiman
[DR
(1972),
675,
820;
Ind.App.
152
charged
“(B)
customarily
The fee
Ewin,
et
Marshall
al. v. Russell R.
locality
for similar
services.
171,
2-106(B)(3)
(1972),
152